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21-138 PDF 2005

EXAMINING VOLUNTARY EMPLOYER COMPLIANCE

PROGRAMS THAT IMPROVE OCCUPATIONAL

SAFETY AND HEALTH

HEARING

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS

OF THE

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

May 12, 2005

Serial No. 109-15

Printed for the use of the Committee on Education and the Workforce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://edworkforce.house.gov 

(II)

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman

Thomas E. Petri, Wisconsin, Vice Chairman 

Howard P. ‘‘Buck’’ McKeon, California 

Michael N. Castle, Delaware 

Sam Johnson, Texas 

Mark E. Souder, Indiana 

Charlie Norwood, Georgia 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Patrick J. Tiberi, Ohio 

Ric Keller, Florida 

Tom Osborne, Nebraska 

Joe Wilson, South Carolina 

Jon C. Porter, Nevada 

John Kline, Minnesota 

Marilyn N. Musgrave, Colorado 

Bob Inglis, South Carolina 

Cathy McMorris, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Bobby Jindal, Louisiana 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

Thelma D. Drake, Virginia 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

George Miller, California 

Dale E. Kildee, Michigan 

Major R. Owens, New York 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Ron Kind, Wisconsin 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Betty McCollum, Minnesota 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Chris Van Hollen, Maryland 

Tim Ryan, Ohio 

Timothy H. Bishop, New York 

John Barrow, Georgia

Paula Nowakowski, Staff Director 

John Lawrence, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

CHARLIE NORWOOD, Georgia, Chairman

Judy Biggert, Illinois, Vice Chairman 

Ric Keller, Florida 

John Kline, Minnesota 

Kenny Marchant, Texas 

Tom Price, Georgia 

Thelma Drake, Virginia 

John A. Boehner, Ohio, ex officio 

Major R. Owens, New York 

Dennis J. Kucinich, Ohio 

Lynn C. Woolsey, California 

Timothy H. Bishop, New York 

John Barrow, Georgia 

George Miller, California, ex officio 

(III)

C O N T E N T S 

Page

Hearing held on May 12, 2005 ............................................................................... 1

Statement of Members: 

Norwood, Hon. Charlie, Chairman, Subcommittee on Workforce Protections, Committee on Education and the Workforce ................................... 1

Prepared statement of ............................................................................... 3

Owens, Hon. Major R., Ranking Member, Committee on Education and 

the Workforce ................................................................................................ 4

Prepared statement of ............................................................................... 6

Statement of Witnesses: 

Migliaccio, Frank L., Jr., Executive Director of Safety and Health, International Association of Bridge, Structural, Ornamental and Reinforcing 

Iron Workers ................................................................................................. 18

Prepared statement of ............................................................................... 20

Morikawa, Dennis J., Esq., Morgan, Lewis & Bockius LLP, Washington, 

DC .................................................................................................................. 23

Prepared statement of ............................................................................... 24

Pressly, David, Incoming President, National Association of Homebuilders, Washington, DC ............................................................................ 13

Prepared statement of ............................................................................... 14

Response to questions submitted for the record ..................................... 45

Turnipseed, Jon, M.S., CSP, Safety Program Manager, City of San 

Bernardino Municipal Water Department, San Bernardino, CA .............. 8

Prepared statement of ............................................................................... 10

Additional materials supplied: 

American Industrial Hygiene Association, Statement submitted for the 

record ............................................................................................................. 42

(1)

EXAMINING VOLUNTARY EMPLOYER COMPLIANCE PROGRAMS THAT IMPROVE OCCUPATIONAL SAFETY AND HEALTH 

Thursday, May 12, 2005

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

Washington, DC 

The Subcommittee met, pursuant to notice, at 10:33 a.m., in 

room 2175, Rayburn House Office Building, Hon. Charlie Norwood 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Norwood, Biggert, Kline, Marchant, 

Price, Drake, Owens, and Woolsey. 

Staff present: Kevin Frank, Professional Staff Member; Ed 

Gilroy, Director of Workforce Policy; Donald McIntosh, Legislative 

Assistant; Jim Paretti, Workforce Policy Counsel; Molly 

McLaughlin Salmi, Deputy Director of Workforce Policy; Deborah 

L. Samantar, Committee Clerk; Kevin Smith, Senior Communications Advisor; Loren Sweatt, Professional Staff; Margo Hennigan, 

Minority Legislative Assistant; Marsha Renwanz, Minority Legislative Associate; Peter Rutledge, Minority Senior Legislative Associate/Labor. 

Chairman NORWOOD. A quorum being present, the Subcommittee 

on Workforce Protections of the Committee on Education and the 

Workforce will come to order. We’re meeting today to hear testimony on examining voluntary employer compliance programs that 

improve occupational safety and health. 

Under Committee rule 12(B), opening statements are limited to 

the Chairman and the Ranking Minority Member of this Subcommittee. Therefore, if other Members have statements, they may 

be included in the hearing record. With that, I ask unanimous consent for the hearing record to remain open 14 days to allow Members statements and other extraneous materials referenced during 

the hearing to be submitted to the official hearing record. 

Without objection, so ordered. 

STATEMENT OF HON. CHARLIE NORWOOD, CHAIRMAN, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE 

ON EDUCATION AND THE WORKFORCE 

Chairman NORWOOD. Today’s hearing will examine voluntary 

employer compliance programs that improve occupational safety 

2

and health. We will explore the voluntary efforts employers and 

workers are undertaking to improve workplace safety. Our witnesses are from a broad spectrum of the safety and health community. I want to thank you for being here and sharing your information and time with this Committee. 

I’ve heard employers say many times that, actually from my own 

first-hand knowledge, that OSHA regulations are too complex and 

difficult to understand. Clearing up this regulatory jungle has been 

one of my top priorities since coming to Congress in 1995, and continues to be so today. I believe a regulatory jungle is an apt description for the myriad of OSHA rules, regulations, gigantic documents, and interpretive letters that employers must come to understand. With all of these documents and the increased use of outside 

materials that are incorporated by reference, the small businessman, and that was what I was, is quite literally being choked by 

the underbrush of government regulations. 

Small businesses want to comply with the nation’s health and 

safety laws—frankly, because it makes very good sense to do so. It 

pays to do so. However, OSHA must simply find a way to simplify 

the process to ensure that businesses are operating in a safe manner. 

Proactive and voluntary compliance with agency health and safety regulations, after all, is far more effective than the ‘‘gotcha’’ enforcement tactics that drive businessmen and women into the 

bunker and away from agency cooperation. Fortunately, OSHA has 

already recognized the need for compliance assistance, and Secretary Chao, in my opinion, is to be commended for a vision and 

leadership in this regard. The cooperative strategies that have been 

implemented in the past 5 years, we are beginning to see positive 

results, and result is all that really counts, the bottom line far 

fewer people or more people being made safe and healthy by what 

we’re trying to do. That’s the whole point of all of this. 

In March 2004, the Government Accountability Office, GAO, 

evaluated these results in a study of voluntary compliance and 

found that safety improvements were being made by companies involved in OSHA’s compliance programs, programs that have contributed to the safest workforce in our nation’s modern history. 

Indeed, one of the key recommendations from GAO during the 

course of its study was to urge Congress to gather more data on 

the utility of the voluntary compliance programs. It is my hope that 

we can begin that process today, through the holding of this hearing. 

During today’s proceedings we will also hear about voluntary efforts employers are making to work with private consultants and 

industrial safety specialists to actually foster a safer workplace. 

This is an important story that needs to be told. After all, it is a 

simple fact that OSHA will never have the resources to visit every 

American workplace to ensure compliance. We can wish for that 

until the cows come home. This government will never have enough 

inspectors to go into every small business in this country. Once we 

recognize that, then we have to go down the road to find another, 

more sensible, way to try to solve the problem. 

Given that fact, we should encourage employers to proactively 

take steps to ensure that workplaces are safe, healthy, and OSHAVerDate 0ct 09 2002 13:26 Nov 16, 2005 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 H:\DOCS\21138 NNIXON
3

compliant. I especially look forward to our witnesses shedding additional light on these issues. Employers should be congratulated for 

their proactive efforts in implementing comprehensive safety and 

health programs. Further, they should be encouraged to invite 

OSHA to their work sites and engaged the agency and compliance 

assistance without fear of reprisals from Federal bureaucrats. That 

is critical to this. 

However, I think there’s still resistance to cooperative programs 

for fear that the government is only looking to punish and not to 

praise. We can have another hearing and go over all the examples 

we know about. Given my own experience with the ‘‘gotcha’’ tactics 

the agency employed in unfairly citing my business many, many 

years ago, I can certainly understand that fear. But that fear 

should not prevent this Committee from further examining the potential of voluntary compliance, and that is exactly what we are 

going to do today. 

There are many proposals to expand compliance programs and 

encourage employers to implement comprehensive, safe, and 

healthy programs and to leverage OSHA’s existing resources. 

Today we will examine some of these proposals and weigh the employers’ exposure when they work with OSHA, and hear the 

positives and the negatives of going beyond compliance. 

I look forward to the testimony of our distinguished panel of witnesses, and I am very eager to learn how current law encourages 

or discourages employers from taking these very crucial steps. 

With that, I would like to recognize my good friend from Brooklyn for any opening statement that he may wish to make. 

[The prepared statement of Chairman Norwood follows:]

Statement of the Hon. Charlie Norwood, Chairman, Subcommittee on 

Workforce Protections, Committee on Education and the Workforce 

Good Morning, the Subcommittee on Workforce Protections will now come to 

order. 

Today’s hearing, Examining Voluntary Employer Compliance Programs that Improve Occupational Safety and Health, will explore the voluntary efforts employers 

and workers are undertaking to improve workplace safety. Our witnesses are from 

a broad spectrum of the safety and health community, and I welcome them here 

today. 

I have heard employers say many times, and know from my own firsthand knowledge, that OSHA regulations are too complex and difficult to understand. 

Clearing up this regulatory jungle has been one of my top priorities since coming 

to Congress in 1995, and it continues to be today. 

I believe that ‘‘a regulatory jungle’’ is an apt description for the myriad OSHA 

rules, regulations, guidance documents, and interpretive letters that employers 

must come to understand. 

With all these documents, and the increased use of outside materials that are incorporated by reference, the small businessman is quite literally being choked under 

the ‘‘brush’’ of onerous government regulations. 

Small businesses want to comply with our nation’s health and safety laws because 

it pays for them to do so. 

However, OSHA must find a way to simplify the process to ensure that businesses 

are operating in a safe manner. 

Proactive and voluntary compliance with Agency health and safety regulations, 

after all, is far more effective than ‘‘gotcha’’ enforcement tactics that drive business 

men and women into the bunker and away from Agency cooperation. 

Fortunately, OSHA has already recognized the need for compliance assistance, 

and Secretary Chao is to be commended for her vision and leadership in this regard. 

Through cooperative strategies implemented in the past five years, we are beginning 

to see positive results; and results are all that count. 

4

In March 2004, the Government Accountability Office (GAO) illuminated these results in a study of voluntary compliance, and found that safety improvements were 

being made by companies involved in OSHA’s compliance programs; programs that 

have contributed to the safest workforce in our nation’s modern history. 

Yet one of the key recommendations from GAO during the course of its study was 

to urge Congress to gather more data on the utility of the voluntary compliance programs. It is my hope that we can begin that process today by holding this hearing. 

During today’s proceedings, we will also hear about voluntary efforts employers 

are making to work with private consultants and industrial safety specialists to foster a safer workplace. 

This is an important story that needs to be told. After all, it is a simple fact that 

OSHA will never have the resources to visit every American worksite to ensure compliance. 

Given that fact, we should encourage employers to proactively take steps to ensure their workplaces are safe, healthy, and OSHA-compliant. 

I especially look forward to our witnesses shedding additional light on this issue. 

Employers should be congratulated for their proactive efforts in implementing 

comprehensive safety and health programs. 

Further, they should be encouraged to invite OSHA to their worksite and engage 

the Agency in compliance assistance without fear of reprisals from federal bureaucrats. 

However, I believe there is still resistance to cooperative programs for fear that 

the government is only looking to punish, not to praise. 

Heck, given my own experiences with the ‘‘gotcha’’ tactics the Agency employed 

in unfairly citing my business not too many years ago, I certainly understand that 

fear. 

But that fear should not prevent this Committee from further examining the potential of voluntary compliance, and that is exactly what we are going to do today. 

There are many proposals to expand compliance programs, encourage employers 

to implement comprehensive safety and health programs, and to leverage OSHA’s 

existing resources. 

Today we will examine some of those proposals, weigh an employer’s exposure 

when they work with OSHA, and hear the positives and negatives of going beyond 

compliance. 

I look forward to the testimony of our distinguished panel of witnesses, and am 

eager to learn how current law encourages—or discourages—employers from taking 

these steps. 

With that I would like to recognize my good friend from New York for any opening 

remarks that he may have. 

Mr. OWENS. Thank you very much. Mr. Chairman, I have a written statement for the record that I would like to have submitted 

in its entirety. 

Chairman NORWOOD. So ordered. 

STATEMENT OF HON. MAJOR R. OWENS, RANKING MEMBER, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE 

Mr. OWENS. I would like to make a few modifications by saying 

at the outset that let us not go to extremes, from one extreme to 

the other. You’re proposing extreme voluntary compliance and 

you’re going to surrender completely to the voluntary process. 

We’ve never had adequate inspections and have sought to get some 

kind of reasonable percentage of businesses and industries inspected. We are, as a result of the emphasis on voluntary compliance, allotting less and less resources to the existing feeble system 

of inspections. Voluntary compliance in this day and age seems certainly to have no evidence in other sectors to recommend it. 

You know, we have for a long time left corporations to take care 

of their own business in terms of their books. We have Enron, you 

know, voluntary. We have WorldCom. We have the drug problem 

in the baseball, football, and basketball sectors, and they are all 

5

saying that we have taken care of it by voluntary compliance. 

Every day more and more evidence indicates that where you have 

human beings, a great proportion of them are going to be honest 

and you can depend upon them to comply and to seek to do what 

is right. 

But there is a percentage, always, that will violate the normal 

and seek to swindle others. It is like corruption—where there is intelligence, there is corruption. All we can hope in this society is to 

have enough regulation, enough inspection to hold the corruption 

to a minimum, and to minimize the suffering. 

That’s the real purpose here. Everybody wants to—I mean most 

Americans, they file their income taxes properly and they seek to 

obey the law. But nobody would propose that we don’t have any tax 

audits. The very existence of a tax audit and the possibility that 

there may be tax audits helps to keep the situation reasonably 

under control in terms of a minimal amount of dishonesty and corruption. 

So we shouldn’t go to extremes and go overboard, as we are here, 

in the area of pushing voluntary compliance. Let’s be more reasonable and look at voluntary compliance as an adjunct and extension 

of what exists already, instead of what is actually happening—that 

is, there is an effort to replace it, to use voluntary compliance to 

replace what exists already. As we increase voluntary compliance, 

we decrease the resources for inspections. 

With that said, let me switch to the topic I was told would be 

the focus of this hearing, and that’s an overall look at voluntary 

programs to assist employers in achieving OSHA standards for 

safety and health. According to the official GAO report that you requested, and you quoted at great length, in the 108th Congress, 

OSHA has an exemplary track record in providing a range of voluntary employer compliance options. Thirty years ago, OSHA established the State Consultation Program, which provides smaller 

companies in hazardous industries on a voluntary basis with free 

and confidential individualized worksite safety assessments as well 

as workable solutions. This voluntary employer compliance program is available in all 50 states, with OSHA footing the bill. In 

fiscal year 2003, OSHA sent $53 million—more than 10 percent of 

its entire budget—to state governments to carry out these voluntary consultations. 

The 2004 GAO report also highlighted three other voluntary employer compliance programs administered by OSHA. They include 

the Voluntary Protection Program, Strategic Partnerships, and Alliances. I do not have the time here to summarize the business targets and cornerstone principles of each of these voluntary programs. However, I wish to draw attention to the central finding in 

this GAO report. GAO emphasized that although OSHA’s voluntary 

employer programs show promise, each must be carefully evaluated 

before any of them are expended. 

GAO repeated numerous times that to date, the data used to assess program outcomes has been entirely anecdotal. In fact, GAO 

felt so strongly about this that they put this central finding in the 

report’s title. The reports title is ‘‘OSHA’s Voluntary Compliance 

Strategies Show Promising Results, but Should Be Fully Evaluated 

before They Are Expanded.’’

6

GAO also documented that between 1996 and 2003, the percentage of OSHA’s budget devoted to voluntary compliance efforts increased by 8 percent, whereas that designated for enforcement decreased by 6 percent. 

I want to remind my colleagues on the other side of the aisle that 

OSHA’s enforcement efforts are a key statutory requirement. The 

Occupational Safety and Health Act of 1970 clearly states at the 

outset that the Secretary of labor shall set mandatory workplace 

safety and health standards and shall enforce them effectively. 

Thus, volunteer programs are an adjunct to OSHA’s central mission of setting and enforcing occupational safety and health standards. 

As I said before, it should not be a substitute. We should not go 

to extremes of moving the mandatory statutory requirements in 

favor of experimenting with voluntary programs. 

Let me point out that both corporate lobbyists and AFL-CIO 

members agree about the condition of OSHA’s chronically underfunded inspection system. Both cite a statistic that given current 

funding and current staffing levels at OSHA, it would take 108 

years—given the situation as it is now—it would take 108 years to 

inspect every workplace in America. So, Mr. Chairman, I request 

that the next Subcommittee hearing be focused on ways to reinvigorate OSHA’s enforcement apparatus, from reconfiguring the targeted inspection process to stepping up citations and penalties for 

repeated safety violators. 

Mr. Chairman, let me close by reminding everyone that we have 

a serious corporate manslaughter problem in this country. Even by 

conservative estimates, a worker is killed on the job every 96 minutes as a result of an employer’s gross negligence and safety lapses. 

As we will hear from our witness Mr. Migliaccio, who represents 

millions of workers in the building and construction trade unions, 

we know how to prevent these deaths. We know how to prevent 

trench collapses where workers are suffocated and free falls from 

construction sites. 

Part of the blame here must be laid at the congressional doorstep. Every year in the appropriations process, we exempt businesses with 10 or fewer employees from targeted OSHA inspections. Yet as we will learn, more than half of all construction fatalities occur in these small businesses. 

I welcome Mr. Migliaccio to this hearing. I look forward to hearing his testimony and that of the other witnesses. I yield back the 

balance of my time, Mr. Chairman. 

[The prepared statement of Mr. Owens follows:]

Statement of Hon. Major R. Owens, Ranking Member, Subcommittee on 

Workforce Protections, Committee on Education and the Workforce 

Mr. Chairman, this is a small Subcommittee with a membership of only 5 Democratic Representatives and 7 Republican Representatives. In representing our Congressional districts and constituencies, we routinely disagree on legislative matters 

and policy issues within this Subcommittee’s jurisdiction. 

It is our sworn duty as Members of Congress to do just that—uphold the U.S. 

Constitution, represent our respective constituencies, and vote according to individual conscience. But hearings in this Subcommittee should not become ‘‘caveat 

emptor’’ or ‘‘minority members beware’’ scenarios. We ought to be able to get our 

signals straight on whether a hearing is to be an oversight session on a given topic 

or a legislative hearing about specific bills. 

7

Especially in light of our small size, we ought to be able to have clear communication channels about that. Now it was my understanding—and that of all the Members on this side of the aisle—that this was to be an oversight hearing on voluntary 

employer compliance approaches to occupational safety and health. In reviewing the 

written testimony last night of witnesses selected by your side of the aisle, however, 

this appears to have morphed into a hearing about specific bills to amend the Occupational Safety and Health (OSH) Act. Mr. Chairman, we need some truth-in-advertising here. By all means, you have the prerogative as Chair to call a legislative 

hearing at any time. But it is only fair to disclose that fact in advance to Members 

on this side of the aisle, so we can prepare ourselves and the one witness we are 

granted accordingly. 

That said, let me switch to the topic I was told would be the focus of this hearing—voluntary programs to assist employers in achieving OSHA standards for safety and health. According to the official GAO report you requested in the 108th Congress, OSHA has an exemplary track record in providing a range of voluntary employer compliance options. Thirty years ago, OSHA established the State Consultation Program, which provides smaller companies in hazardous industries on a voluntary basis with free and confidential individualized worksite safety assessments 

as well as workable solutions. This voluntary employer compliance program is available in all 50 States, with OSHA footing the bill. In fiscal year 2003, OSHA sent 

$53 million dollars—more than 10 percent of its entire budget—to state governments to carry out these voluntary consultations. 

The 2004 GAO report also highlighted 3 other voluntary employer compliance programs administered by OSHA. They include the Voluntary Protection Program, 

Strategic Partnerships, and Alliances. I do not have the time here to summarize the 

business targets and cornerstone principles of each of these voluntary programs. 

However, I wish to draw attention to the central finding in this GAO report. GAO 

emphasized that although OSHA’s voluntary employer programs show promise, each 

must be carefully evaluated before any of them are expanded. 

GAO repeated numerous times that to date, the data used to assess program outcomes has been entirely anecdotal. In fact, GAO felt so strongly about this that they 

put this central finding in the report’s title: ‘‘OSHA’s Voluntary Compliance Strategies Show Promising Results, but Should Be Fully Evaluated before They Are Expanded.’’

GAO also documented that between 1996 and 2003, the percentage of OSHA’s 

budget devoted to voluntary compliance efforts increased by 8 percent, whereas that 

designated for enforcement decreased by 6 percent. I want to remind my colleagues 

on the other side of the aisle that OSHA’s enforcement efforts are a key statutory 

requirement. The OSH Act of 1970 clearly states at the outset that the Secretary 

of Labor shall set mandatory workplace safety and health standards and shall enforce them effectively. Thus, voluntary programs are an adjunct to OSHA’s central 

mission of setting and enforcing occupational safety and health standards. 

Let me point out that both corporate lobbyists and AFL–CIO members agree 

about the condition of OSHA’s chronically underfunded inspection system. Both cite 

a statistic that given current funding and current staffing levels at OSHA, it would 

take 108 years to inspect every workplace in America. So, Mr. Chairman, I request 

that the next Subcommittee hearing be focused on ways to reinvigorate OSHA’s enforcement apparatus, from reconfiguring the targeted inspection process to stepping 

up citations and penalties for repeated safety violators. 

Mr. Chairman, let me close by reminding everyone that we have a serious corporate manslaughter problem in this country. Even by conservative estimates, a 

worker is killed on the job every 96 minutes as a result of an employer’s gross negligence and safety lapses. As we will hear from our witness Mr. Migliaccio, who represents millions of workers in the building and construction trade unions, we know 

how to prevent these deaths. We know how to prevent trench collapses where workers are suffocated and free falls from construction sites. Part of the blame here must 

be laid at the Congressional doorstep. Every year in the appropriations process, we 

exempt businesses with 10 or fewer employees from targeted OSHA inspections. Yet 

as we will learn, more than half of all construction fatalities occur in these small 

businesses. I welcome Mr. Migliaccio to this hearing. I look forward to hearing his 

testimony and that of the other witnesses. 

Chairman NORWOOD. Thank you very much, Mr. Owens. We will 

begin with our panel of distinguished witnesses, and I would like 

to introduce all of you, and then Mr. Turnipseed, we will start with 

you. 

8

Our first witness today is Mr. Jon Turnipseed, the safety program manager for the city of San Bernardino Municipal Water Department. Mr. Turnipseed is also a certified safety professional, 

certified safety supervisor, and certified occupational hearing conservationist, and we do welcome you, Mr. Turnipseed. 

Next, we’re going to hear from Mr. David Pressly, the president 

of Pressly Development Company and the incoming president of 

the National Association of Homebuilders. The Pressly Development Company builds single-family homes and light commercial 

projects. Mr. Pressly has been involved in the home building industry for more than 25 years. 

Our next witness will be Mr. Frank L.—all right, I’m going to 

try—Migliaccio, is that—say it out loud for me? 

Mr. MIGLIACCIO. Migliaccio. 

Chairman NORWOOD. Well, you’re most welcome, and with your 

permission, I will call you Frank and you can call me Charlie. 

[Laughter.] 

Chairman NORWOOD. Frank is Executive Director of Safety and 

Health of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, and you’re most welcome. 

And finally, we will hear from Mr. Dennis Morikawa. How did 

I do? 

Mr. MORIKAWA. You can call me Dennis. 

Chairman NORWOOD. OK. 

[Laughter.] 

Chairman NORWOOD. That will work, you can call me Charlie. 

That will be fine. A partner at Morgan Lewis and specializing in 

employment law. Dennis assists his clients with OSHA Voluntary 

Protection Programs and represents clients in a variety of matters 

regarding the Occupational and Safety Health Act. He is also the 

author of several articles regarding occupational safety and health 

and employer compliance. 

Now, before our witnesses start with their testimony, I want to 

remind our Members that we will ask questions after the entire 

panel has testified. In addition, the Committee Rule 2 imposes a 

5-minute limit on all questions. Now, I don’t like to impose on our 

guests, but I do point out to you that in front of you there is a set 

of lights, and when you see that yellow light, I would ask you to 

start thinking about closing up before it gets to be red, so that we 

can do this in an expedient manner. 

Mr. Turnipseed, you’re up for 5 minutes. 

STATEMENT OF JON TURNIPSEED, M.S., CSP, SAFETY PROGRAM MANAGER, CITY OF SAN BERNARDINO MUNICIPAL 

WATER DEPARTMENT, SAN BERNARDINO, CA 

Mr. TURNIPSEED. Chairman Norwood and Members of the Subcommittee, I want to thank you for this opportunity to represent 

30,000 members of the American Society of Safety Engineers who 

all share your interest in finding ways to advance our nation’s commitment to occupational safety and health. 

I am a certified safety professional who has worked in the profession for over 20 years. Since 1996, I have been the safety program 

manager for the city of San Bernardino one municipal water Department in California. From my experience I can tell you that the 

9

ideas that the Subcommittee is examining today, like third-party 

audits and providing more useful information on OSHA closing conferences, are ideas that complement and strengthen OSHA’s enforcement role, which our members also support. 

However, enforcement is never enough. The challenge ASSE 

members face in today’s workplace is to help employers move beyond compliance toward establishing proactive safety and health 

measures. The ideas under consideration today will encourage 

more employers to do that. ASSE has long supported legislation 

that would encourage employers to engage in voluntary safety and 

health audits. 

The approach of Senator Enzi’s ‘‘SAFE Act’’ calls for a third-party 

independent audit and evaluation program separate from OSHA. 

These voluntary audits will not supplant OSHA’s enforcement and 

cooperative efforts only add one more tool to increase the number 

of safe and healthy workplaces. OSHA is simply not given enough 

resources to provide the inspections and consultation services that 

can reach as many employers as we would all like. 

Qualified auditors with necessary experience, education, and 

skills, to be set by the Department of Labor advisory committee, 

would perform workplace inspections and provide consultation 

services to employers. Their greatest value will be in helping employers provide a safe culture to those businesses lacking the internal resources for their own health and safety programs. 

Reaching out to such employers may be the biggest challenge for 

OSHA. ASSE believes creative ways to meet this challenge, like 

this program, are needed. To help ensure auditors’ competence, a 

program must rely on widely accepted mechanisms for certifying 

safety and health professionals who can participate. Auditors 

should have professional safety and health credentials like the CSP 

or CIH that meet the stringent requirements of quality accreditation bodies such as the NCCA, CESB, and ANSI’s ISO. 

With the assistance of qualified auditors, employers would be 

more open to making suggested improvements, especially if a safe 

harbor from routine OSHA penalties were offered as an incentive 

for participation. 

A third-party audit program would not lessen OSHA’s enforcement. It would provide additional resources for employers and encourage them in a less intimidating and positive way to take responsibility for safe and healthy workplaces. 

ASSE also believes that proactive employer efforts to advance 

safety and health can be encouraged through Senator Tiahrt’s proposal to provide employers with a written statement on OSHA closing conferences. An OSHA inspector would be required to provide 

written results of the inspection as well as provide to the employer 

rights to conference and contest penalties and procedures involved 

in exercising these due process rights. 

Most important is that this measure would give employers timely 

notice of any perceived hazards or regulatory violations so that the 

employers could take prompt voluntary corrective actions to protect 

workers. It would also assist employers, especially small businesses, by giving fair notice of procedural requirements minimizing 

the potential for confusion when dealing with OSHA. 

10

Important also is that this requirement would not unduly burden 

OSHA, since any procedural information could easily be given 

through a preprinted statement. However, one difficulty needs to 

be addressed before the bill goes forward. At the closing conference 

it is unlikely that an OSHA inspector can know precisely which citations OSHA officials will ultimately approve. Additional review 

following accident investigations or help monitoring analysis, for 

example, may be necessary. While the inspectors should identify 

specific conditions that pose a threat to the workers’ health and 

safety, initial citation recommendations at the closing conference 

cannot be made binding by OSHA. 

With the support of ASSE, with these changes, ASSE hopes the 

Committee can support this proposal. 

Mr. Chairman, we thank you for this opportunity, and ASSE 

looks forward to working with the Subcommittee to advance these 

initiatives and help encourage employers to proactively address 

workplace safety and health risks. 

[The prepared statement of Mr. Turnipseed follows:]

Statement of Jon Turnipseed, M.S., CSP, Safety Program Manager, City of 

San Bernardino Municipal Water Department, San Bernardino, CA 

Chairman Norwood and Members of the Subcommittee: 

My name is Jon Turnipseed and I am a member of the Government Affairs Committee of the American Society of Safety Engineers (ASSE). In my professional capacity, I am Safety Program Manager for the City of San Bernardino Municipal 

Water Department in California. On behalf of ASSE, I am pleased to submit the 

following testimony on the subject of ‘‘Examining Voluntary Employer Compliance 

Programs that Improve Occupational Safety and Health.’’

ASSE is the oldest and largest society of safety engineers and safety professionals 

in the world. Founded in 1911, ASSE represents approximately 30,000 dedicated 

safety and health professionals. ASSE’s membership includes Certified Safety Professionals, Certified Industrial Hygienists, and Professional Engineers who are leaders in their fields with the knowledge and expertise needed to move safety and 

health forward on a global level. 

We will focus our comments today in two areas: incentives to implement third 

party safety and health audits and, the significance of closing conferences in the Occupational Safety and Health Administration (OSHA) inspection process. 

ASSE’s members support safety and health agencies such as OSHA and believe 

these agencies help maintain a national focus on the importance of occupational 

safety and health. However, ASSE believes that enforcement is but one facet of a 

national effort. Our members strive to help their companies, and those outside employers who are assisted by their consultative efforts, to move beyond compliance 

by focusing on proactive measures rather than reactive remedial steps. More forward-looking initiatives are needed if American business hopes to break through the 

plateau of injuries and illnesses that currently exists. 

The Role of Third Party Audits In Improving Workplace Safety 

ASSE has consistently supported legislative initiatives that would encourage employers to conduct voluntary safety and health audits. The ‘‘third party audit’’ envisioned in previous legislative proposals, such as Senator Enzi’s ‘‘SAFE Act,’’ encompass these aspects and ASSE is hopeful that, once employers realized the benefits 

of such evaluative action, they would continue to implement this practice voluntarily 

on a regular basis. 

The ‘‘SAFE Act’’ approach calls for a ‘‘third-party independent audit and evaluation program’’ separate from OSHA. It would establish qualified ‘‘auditors’’ who 

would provide consultation services to employers and perform workplace inspections. The qualifications for such auditors could be established by an advisory committee under the U.S. Department of Labor, to ensure that the participating safety 

and health professionals had the experience, education and skills to perform the assigned functions within their respective areas of expertise. 

The participating professionals would not be ‘‘deputized’’ OSHA inspectors but 

would help increase safety awareness and improve the safety culture of businesses 

that lack internal resources to initiate their own programs. Because there would be 

11

no enforcement action associated with identification of hazards or non-compliant situations, employers would be more open to making the suggested improvements—

especially if a safe harbor from routine OSHA inspections was offered as an incentive for participation. Employers who resist making improvements to identified hazardous conditions would, of course, not qualify for any inspection-related incentives. 

The third party audit program will both impart an improved attitude toward safety among the business community and have practical, positive impacts on actual 

workplace conditions by identifying problems and implementing suggestions 

proactively. Simply put, the federal government does not have the resources necessary to provide either the inspections or consultation services necessary to help 

ensure safe and healthy workplaces across the country. 

If OSHA compliance officers had to visit every workplace, this would only occur 

once every 102 years. Under the current system, most businesses will complete their 

entire life cycle without the experience of an OSHA inspection—and without the 

purported benefits of compliance assistance gained by this experience, unless they 

are ultra-hazardous industries. OSHA normally inspects a worksite only after there 

is an accident, an employee complaint, or a plainly visible hazard that is brought 

to OSHA’s attention by agency personnel or a professional referral. This approach 

is not geared toward prevention, but toward ‘‘after-the-fact’’ punishment. 

The ‘‘third party audit’’ legislative approach encourages voluntary efforts of employers to seek out safety and health practitioners with proven competence and professional independence to put in place effective safety and health programs. These 

voluntary audits will not supplant federal enforcement and cooperative efforts but 

will add another tool for increasing the number of safe and healthy workplaces. We 

disagree with those who claim that such audits are an impermissible delegation of 

OSHA’s enforcement authority. Moreover, there is precedent within the federal government for this approach. The U.S. Department of Transportation (DOT) has contracted with outside entities to conduct third party audits of ‘‘new entrant’’ motor 

carriers. Specific criteria ensure the qualifications of those auditors and also effectively address conflict of interest issues. 

Similar criteria could be applied by OSHA most effectively to any third party 

audit program. If OSHA developed a network of qualified third party auditors—to 

be deployed either voluntarily through agency policy or under a statutory mandate—they would have more flexibility to provide compliance assistance than under 

their current system. With a process that insures consistency in the application of 

the compliance audit process and the prohibition of conflicts of interest, this system 

should work very well. 

With respect to ‘‘credentialing’’ of program participants, ASSE recommends that 

legislation recognize the administrative mechanisms for credentialing/certifying 

safety and health professionals that have been in place for decades in the private 

sector. Our recommendation is that future legislation should specify that certifications be accredited by one of the following accreditation bodies be the Council of 

Engineering and Scientific Specialty Board (CESB), the National Commission for 

Certifying Agencies (NCCA) and ISO/ANSI. 

Finally, there is little incentive for a consultant to go against the tenets of the 

‘‘SAFE Act’’ as they would risk criminal prosecution by the federal and/or state governments, civil penalties, lost of certification/licensure, potential tort litigation exposure, and the loss of reputation and livelihood. We hope that this Subcommittee will 

agree that the qualified consultants who would be eligible to participate in such a 

program would be an asset to employers, employees, government, and the country. 

Their proven level of integrity would be an overall enhancement to safety and 

health in the workplace. 

More Effective Utilization of OSHA Closing Conference Will Improve Safety 

ASSE also wishes to comment on the pending legislative proposal contained in HR 

979, which was introduced by Rep. Todd Tiahrt (R–KS). This legislation would 

amend Section 8 of the Occupational Safety and Health Act of 1970 (29 USC 657, 

the ‘‘OSH Act’’) to require OSHA to provide the employer with a written statement 

at the closing conference, following completion of an inspection, that clearly and concisely provides information on the results of the inspection, including each alleged 

hazard and each citation that would be issued. The inspector would also provide 

written information on the rights of the employer to conference and contest citations, penalty assessments and the procedures involved in exercising these due process rights. 

The Society believes this legislation will contribute to enhanced safety and health 

by providing timely notice to employers of any perceived hazards and/or regulatory 

violations so that they can take prompt and appropriate corrective action. HR 979 

would also assist employers—especially small businesses—by providing fair notice 

12

of procedural requirements and minimizing the potential for confusion that has resulted in some cases becoming final by mistake. 

We do not see providing the procedural information as being unduly burdensome 

on the agency, insofar as this procedural information could easily be imparted 

through a preprinted written ‘‘statement of rights’’ handed to the employer at the 

time of the closeout. Employers who do not understand this information should have 

an opportunity to ask questions of the inspector at the closing conference. This could 

be especially important for non–English speaking employers who may not be able 

to comprehend written information but who can converse with many of OSHA’s 

multi-lingual compliance officers. 

With regard to a written statement of findings, ASSE believes that it is both practical and necessary for OSHA to give prompt notice of the results of the inspection 

and to identify the hazards at this stage, rather than waiting up to six months 

(under current law) to issue citations to the employer and having such citations be 

the first notification of the allegedly violative conditions. 

Section 8 of the OSH Act is silent concerning closing conferences. However, OSHA 

policy calls for three main phases of inspection activity: in addition to the actual 

‘‘walkaround’’ portion, the CSHO is also required to conduct an opening conference, 

and a closing conference. OSHA’s Field Inspection Reference Manual (the ‘‘FIRM’’, 

CPL 02–00–103 (1994)), states, in relevant part: ‘‘The CSHO shall describe the apparent violations found during the inspection and other pertinent issues as deemed 

necessary by the CSHO.’’

OSHA’s May 1996 Construction Safety and Health Outreach Program document 

describes the Closing Conference in the following manner: 

It is a time for free discussion of problems and needs; a time for frank questions and answers. The compliance officer discusses with the employer all 

unsafe or unhealthful conditions observed on the inspection and indicates 

all apparent violations for which a citation may be issued or recommended. 

The employer is told of appeal rights. The compliance officer does not indicate any proposed penalties. Only the OSHA area director has that authority, and only after having received a full report. 

Reading these policies, it would appear that the agency—at least informally—comprehends the value of prompt communication to the employer concerning hazardous 

or allegedly violative conditions at the conclusion of an inspection or voluntary compliance audit. If this were actually occurring, HR 979 would largely be redundant. 

Unfortunately, the experience of ASSE members appears to be that the closing conference sometimes lacks this vital element and, as such, as been stripped of much 

of its safety value. 

The lack of prompt notice is especially harmful in the construction industry, 

where conditions change quickly and a project may be completed (or a building fully 

demolished) between conclusion of the inspection and issuance of the citations. If 

a General Contractor does not receive timely notice of an alleged violation, not only 

will workers continue to be at risk but the ‘‘GC’’ may find it impossible to fully identify all parties involved and to ascertain what actually occurred, who participated 

in creating the hazard, who was exposed, and what conditions were present. This 

interferes with the GC’s ability to hold subcontractors accountable for OSHA compliance and to utilize contractual disciplinary provisions fully. 

ASSE does wish to clarify that, at the closing conference, it is unlikely that the 

inspector will know precisely what citations will ultimately be approved by OSHA 

officials as this may require additional review of documentation obtained through 

the accident investigations and/or analysis of health monitoring and other samples. 

Finally, although the compliance officers should identify with specificity those conditions that he/she believes pose a threat to worker safety and health, their initial 

citation recommendations must not be binding on the agency in terms of precluding 

deviation when the formal citations ultimately are issued. It may be sensible to 

modify the language of this paragraph to reference ‘‘citations under consideration’’ 

rather than those that ‘‘will be issued.’’

Conclusion 

The American Society of Safety Engineers greatly appreciates the opportunity to 

provide testimony at this important hearing on significant issues affecting the safety 

and health of American workers and the ability of their employers to manage workplace safety. We look forward to working with this subcommittee and Congress to 

advance these and other legislative initiatives that will encourage proactive steps 

to more effectively protect people, property and the environment. 

We will be happy to answer any questions you may have and will work to provide 

any additional information that may be requested. 

Thank you. 

13

Chairman NORWOOD. Thank you very much, Jon. I appreciate 

your timeliness there. 

David, you’re up next for 5 minutes. 

STATEMENT OF DAVID PRESSLY, INCOMING PRESIDENT, NATIONAL ASSOCIATION OF HOMEBUILDERS, WASHINGTON, 

DC 

Mr. PRESSLY. Mr. Chairman, Ranking Member, and Members of 

the Subcommittee, on behalf of the more than 220,000 members of 

the National Association of Home Builders, I would like to thank 

you for the opportunity to testify before you today. My name is 

David Pressly, and I am a home builder and developer from Statesville, North Carolina. I will be the president of NAHB in 2006. 

Mr. Chairman, let me begin by saying that home builders made 

only acknowledge a legal and moral obligation to provide their employees with a safe workplace, they share the concerns of this Committee, as well as OSHA, to ensure the health and safety of all of 

their employees in the home building industry. 

As a small business owner, I know that taking seriously the 

health and safety of my employees is one of my most important 

jobs. I have in my hand my own company’s safety policy and health 

plan, which I wrote about 15 years ago with the help of NAHB, and 

I understand the importance of providing our employees with safety orientation and ongoing safety awareness training. 

Now, the vast majority of NAHB’s members are classified as 

small businesses. Over 80 percent of NAHB’s members build fewer 

than 25 homes a year, and a typical member firm employs fewer 

than 10 workers. Many of our small homebuilders are often puzzled 

by the complexity and range of OSHA requirements. Most don’t 

have a full-time safety professional or a legal team at the ready, 

because it is simply not possible or affordable for them. Builders 

use their limited resources to target and prevent serious job site 

hazards. Most, due to their size, will never have the opportunity 

to participate in OSHA’s voluntary protection program, or VPP Program. 

NAHB has long been successful in collaborating with OSHA in 

a variety of voluntary endeavors to advance job safety in an industry. Let me give you several examples of our collaboration. First, 

participation in the OSHA Alliance program, where NAHB and 

OSHA combine resources to focus attention on safety needs in our 

industry. The alliance has helped increase awareness at OSHA of 

the differences between ‘‘best practices’’ at residential versus commercial construction job sites. 

Next is participation in OSHA’s Harwood Training Grant program, which has allowed NAHB to provide valuable safety training 

for thousands of our smallest members, helping us target the growing Hispanic workforce in our industry with Spanish safety materials, such as this book we developed with OSHA on scaffold safety. 

So we continue to urge OSHA to ensure that their safety materials 

target this Hispanic population, as well. 

Finally, we participate within the OSHA Partnership program by 

our local associations, which has a positive impact on construction 

safety in our industry. We are concerned, however, that recent poliVerDate 0ct 09 2002 13:26 Nov 16, 2005 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6602 H:\DOCS\21138 NNIXON
14

cies issued by OSHA will jeopardize the ability of our small members to continue participating in the Partnership program. 

Collaborative efforts with OSHA have helped improve the regulatory environment so it is effective, efficient, and has assured that 

construction job sites are safer than ever. However, additional efforts are required to improve OSHA’s inspections and citation process, including reviewing the amount of time OSHA is allotted to 

issue citations. The Occupational Safety and Health Act allows 

OSHA to issue citations up to 6 months following an inspection. 

Far too often in our industry, OSHA utilizes all of the allowable 6 

months to issue a citation. Home builders have received citations 

from OSHA 5 months and 28 days after the inspection. Typically, 

a house takes about 3 months to build, and often OSHA issues a 

citation, although the house is no longer under construction and legally turned over to the homeowner. The employees and supervisors of this site are no longer there, and in the residential construction industry time is of the essence. 

In order for a builder to appropriately correct a violation and retrain employees that might have committed the infraction, OSHA 

must be required to issue the citations in a timely manner. 

Additionally, OSHA requires a response from employers within 

15 days for contesting the citations. Often, a small business like 

ours have a lot on their plate and inadvertently miss the deadline, 

or misplace paperwork, leaving no recourse to contest OSHA citations. 

So we support Chairman Norwood’s legislation, H.R. 739, and 

any legislation which would provide flexibility on the 15-day contest period if the missed deadline was the result of a mistake, inadvertence, or surprise. 

We also believe that prompt notification in the form of a written 

summary at the conclusion of an OSHA inspection, before they 

leave the job site, would be beneficial to our industry. This would 

provide timely notice to homebuilders of potential safety hazards 

and allow them to correct any hazard or violation quickly. 

Finally, we strongly believe that at the conclusion of an inspection, OSHA should be required to provide employers with all of the 

necessary information to help them understand the OSHA citation 

procedures. Inspectors should explain in clear, plain English and 

Spanish how the citation process works, what the employer’s rights 

are. For this type of reform, though small, it is an important step 

in helping our small businesses. 

Mr. Chairman, it is our pleasure to be with you, and I look forward to entertaining your questions. 

[The prepared statement of Mr. Pressly follows:]

Statement of David Pressly, Incoming President, National Association of 

Home Builders, Washington, DC 

Introduction 

Mr. Chairman, Ranking Member, and members of the Subcommittee, on behalf 

of the more than 220,000 members of the National Association of Home Builders 

(NAHB), I would like to thank you for the opportunity to testify before you today 

on the issue of Occupational Safety and Health Administration (OSHA) reform and 

to further express the housing industry’s support for efforts to address some of the 

most frequent concerns our members have when dealing with the OSHA inspection 

and citation process. My name is David Pressly and I am the First Vice President 

15

of NAHB and a home builder and developer of both single family homes and apartments in Statesville, North Carolina. I will be the President of NAHB in 2006. 

Meaningful OSHA reform remains one of the housing industry’s legislative priorities—just as it ranks highly for so many other small businesses across the United 

States. In recent years, OSHA has significantly increased its inspection activities in 

the home building industry, and the process by which many of those inspections 

were undertaken has raised concerns from our members about OSHA’s enforcement 

practices and procedures. We believe that there are several ways in which we can 

improve OSHA’s procedures that would make regulatory compliance more cost-effective and make OSHA more user friendly for small businesses, while improving housing affordability and continuing to protect the safety of workers in the home building industry. We applaud the efforts of Chairman Norwood to promote several 

pieces of procedural reform legislation that were approved by the full House Education and the Workforce Committee in April, and look forward to the opportunity 

to discuss other ideas for procedural and process reforms. 

Mr. Chairman, let me begin by saying that home builders not only acknowledge 

a legal and moral obligation to provide their employees with a safe workplace, they 

share the concerns of this committee, as well as OSHA, to ensure the health and 

safety of all men and women employed in the home building industry. Further, we 

share the same ultimate goal of ensuring a safe working environment. Builders 

know that creating a safe work environment makes good business sense. It is no 

secret that safety saves lives—and money. Builders have learned that the money 

saved through reduced workers’ compensation costs, lost time due to worker injuries, and less time spent on accident claims and reports can be converted to improvements in the way they operate their businesses, including the management of 

safety and health on the jobsite. It is also no surprise that a safe jobsite is also the 

key to retaining good employees. The building industry anticipates that we will need 

to build almost 18 million new homes during the next decade. The continuing increase in the demand for housing will create almost 1 million new jobs in the residential construction industry. As a small business owner, I know that taking the 

health and safety of my employees seriously is not only my moral obligation, but 

also one of the best ways I have of recruiting and retaining good employees. 

About the Home Building Industry 

NAHB is a building trade association that represents more than 220,000 member 

companies nationwide. Our membership consists of builders and remodelers of single-family homes, townhomes, apartments, and condominiums, as well as thousands 

of specialty trade contractors. A vast majority of NAHB’s members are classified as 

‘‘small businesses’’ and our members employ approximately 8 million people nationwide. Our association’s builder members will construct about 80 percent of the more 

than 1.8 million new housing units projected for 2005, making housing one of the 

largest engines of economic growth in the country. Our members provide Americans 

the opportunity to realize the American dream of homeownership. 

The home building industry continues to be one of the most heavily regulated industries in the nation, which is a significant reason why home ownership is beyond 

the reach of many Americans. Currently, small businesses in the United States bear 

a disproportionate share of the cost of our nation’s regulatory burden. According to 

the Small Business Administration, federal regulations cost small businesses 60 percent more per employee than it costs large businesses, and compliance with these 

existing regulations can be very costly—averaging $7,000 per employee. In our industry, a sizeable share of these regulations comes from OSHA, and the costs imposed by OSHA regulations are financially onerous to every aspect of the home 

building industry. 

The majority of the home building industry is comprised of very small businesses. 

Over 80 percent of NAHB’s member’s build fewer than 25 homes per year and more 

than half build fewer than 10 homes per year. A typical NAHB member firm is truly 

a small business, employing fewer than 10 workers. 

In most small home building companies the owner is the president or chief executive officer. Many businesses are a family affair with husband and wife teams, 

brothers, sisters, or kids frequently involved in the business. Many times, owners 

employ only a few workers and view them as family, regularly working in the same 

conditions as their employees. The staff and owners at these small companies also 

wear many hats, such as: investor—responsible for funding construction projects; 

salesman—meeting with prospective home buyers; purchasing manager—in charge 

of ordering construction materials and supplies; marketing manager—promoting the 

company and its products; accountant—ensuring creditors and employees are paid; 

construction manager—ensuring that the home gets built on time and within budgVerDate 0ct 09 2002 13:26 Nov 16, 2005 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 H:\DOCS\21138 NNIXON
16

et; and even construction worker—swinging the hammer to ensure a quality product. 

Many small home builders are often puzzled by the complexity and range of 

OSHA requirements imposed upon them. Most small construction firms do not have 

a full-time safety professional to implement the array of regulations because it is 

simply not possible or economically feasible for these small businesses. They use 

their limited resources to prevent recognized and serious jobsite hazards, such as 

falls, excavations/trenching, electrical safety and improving other worker safety and 

health concerns. A safe and productive workforce is crucial to any company, particularly a small one, and it should be stressed again that these employers want jobsites 

free of dangerous hazards. 

As a small business owner, I am concerned for the safety and health of my workers—my company’s most important asset. I have brought with me today a copy of 

my own company’s safety and health plan. I understand the importance of providing 

our employees safety orientation and ongoing safety awareness training, and I am 

not alone. Tens of thousands of home builders across the nation also recognize the 

value of providing a safe construction site for their workers. 

Alternative to More Regulation 

NAHB supports alternatives to the regulatory approach for ensuring worker safety, and we have been successful in collaborating with OSHA in a variety of voluntary endeavors to advance jobsite safety throughout the home building industry. 

Similar to our efforts with the Environmental Protection Agency to improve the 

storm water permitting program and with the U.S. Fish and Wildlife Service to enhance its methods for designating critical habitat under the Endangered Species 

Act, we believe that our collaborative efforts with OSHA have helped our home 

builders work more safely, which has saved them time and money—savings which 

builders can then pass on to home buyers. Some of the collaborative efforts between 

NAHB and OSHA that have had a positive impact on construction safety in the 

home building industry include: 

• Participation in the OSHA Alliance program, where NAHB and OSHA have 

combined its collective resources and focused its attention on addressing the 

safety educational needs of the home building industry workforce. This Alliance 

has been vitally important to increasing the awareness at OSHA, and among 

OSHA inspectors, of the differences between residential and commercial construction jobsites, and the often crucial differences between ‘‘best practices’’ at 

residential vs. commercial build sites. 

• Participation on the OSHA Crane and Derrick Negotiated Rulemaking Advisory 

Committee (C–DAC), which has helped us to ensure that OSHA better understands how this revised regulation will impact the home building industry. 

• Participation in OSHA’s Harwood Training Grant program, which has allowed 

NAHB to provide valuable safety training, for free, at our local home building 

associations to nearly 1500 home builders and trade contractors. Participating 

in this program has given us a greater ability to reach some of our very small 

builders, who otherwise would have no access to organized OSHA training opportunities. Additionally, this program has helped us to target the growing Hispanic workforce in our industry. As many of the small businesses in our industry will tell you, it is vitally important that the training and safety materials 

we provide reach the non–English speaking employee population. NAHB is 

working hard to get Spanish-language safety materials out to our builder members, and we continue to urge OSHA to do more to ensure that their inspectors 

and safety materials can target this population. 

• Participation on the OSHA’s Advisory Committee on Construction Safety and 

Health (ACCSH), which has opened line of direct communication for home 

builders with OSHA and has ensured that home builders’ viewpoints and opinions are taken into account prior to OSHA issuing construction safety regulations. 

• Participation in the OSHA Partnership program by our local associations, which 

has improved communication between our members and OSHA and has had a 

positive impact on construction safety in our industry. 

NAHB is not an opponent of safety regulations, as long as these safety regulations 

are practical, feasible, cost-effective, and improve worker safety, but we believe that 

more can be accomplished working collectively—through non-regulatory efforts—to 

improve worker safety in our industry. 

We believe that collaborative efforts with OSHA have helped improve the regulatory environment so it is effective, but not inefficient, and has ensured that construction jobsites are safer than ever. The hope is that these collaborative efforts 

will continue far into the future. 

17

Need for OSHA Reform Legislation 

NAHB believes that additional efforts are required to fix OSHA’s inspection and 

citation process. For example, one of the most pressing issues among our members 

is the lengthy amount of time that often occurs between an inspection and the receipt of a citation. The Occupational Safety and Health (OSH) Act directs OSHA to 

issue violation citations with ‘‘reasonable promptness’’ following a site inspection, 

but allows OSHA to issue citations up to 6 months following any violation found 

during a jobsite inspection. In addition, any citation issued by OSHA includes a 

timeframe for correcting the alleged violation. 

Far too often in our industry, OSHA utilizes all of the allowable six months to 

issue a citation. NAHB believes that allowing OSHA up to 6 months to issue a citation creates uncertainty for home builders and does not improve safety of workers. 

I would like to offer an example of how OSHA has issued citations to our members: 

• Home builders have received citations from OSHA 5 months & 28 days after 

the jobsite inspection. Typically, a house takes approximately 90 days to build. 

In this scenario, OSHA has issued a citation and proposed a date to abate the 

alleged violation, although the house is no longer under construction and legally 

turned over to home owner. 

A review of, and changes to, the OSHA citation process would improve jobsite 

safety by allowing for prompt notification AND correction of any jobsite hazards discovered during an OSHA inspection. If OSHA issues a citation nearly 6 months 

after the jobsite inspection, how ‘‘serious’’ can the alleged violation be if it takes this 

much time to notify the builder of a potential jobsite hazard? It does no good to 

issue a citation months after the home is completed, when the site is no longer operating, and the opportunity to alert the employees and site supervisors to the hazard—and how to correctly fix the hazard—no longer exists. OSHA must realize that, 

in the residential construction industry, time is of the essence. In order for a builder 

to appropriately correct a violation, and re-train the employees who might have 

committed the infraction, OSHA must be required to issue the citations in a more 

timely manner. 

In addition, if a company receives an OSHA citation, OSHA requires a response 

from employers within 15 days for contesting citations. Often, small businesses have 

too much on their plate and inadvertently miss the 15 day deadline or even misplace paper work, further delaying a response to OSHA. In these circumstances 

where the 15 day deadline has passed, the small business owners have no recourse 

to contest OSHA citations. We support Chairman Norwood’s legislation, H.R. 739, 

and any legislation that would provide flexibility on the 15-day contest period if the 

missed deadline was the result of a mistake, inadvertence, surprise, or excusable neglect. 

The imbalance of OSHA utilizing 6 months to issue a citation, while employers 

must contest any citation within 2 weeks is not only unfair to employers, but most 

importantly does not improve safety on the job. NAHB believes that OSHA procedural reforms would go a long way to ensure that small businesses are able to contest OSHA citations and any proposed penalties by leveling the playing field and 

by making OSH Act easier to understand. 

In addition, NAHB supports another procedural OSHA reform that could improve 

jobsite safety in our industry. Prompt notification, in the form of a written summary 

at the conclusion of the OSHA inspection. This would provide timely notice to home 

builders of potential safety hazards and allow them to correct and hazard or violation quickly. The alternative to a written summary after the inspection of for builders to wait several weeks, and possibly up to 6 months, for OSHA to issue citations 

notifying them of the nature of a violation found during the inspection. Employers 

have a right to know about any potential hazards discovered by OSHA on the jobsite, without any delay. This full disclosure by OSHA following an inspection, and 

before they leave the jobsite, would allow for the timely abatement of safety hazards 

by home builders, which provides the desired protection to construction workers. 

Additionally, we strongly believe that OSHA should be required to provide employers with all of the necessary information to help them understand the OSHA 

citation procedures. Employers should be given clear, plain–English information on 

how the citation process works, what their rights are to contest any citations they 

receive, and how the process of contesting the citation takes place, including the 

procedures undertaken at the OSH Review Commission (OSHRC). Finally, all employers should be provided with a list of contacts at the local or regional OSHA office, so that they can call with questions about their inspection or citations. We believe that this type of procedural reform, though small, is an important step towards 

helping our small business employers who are so often intimidated and confused by 

the OSHA inspection and citation process. 

18

Conclusion 

In conclusion, I would like to reiterate that the members of NAHB are committed 

to worker safety and health. We urge Congress to review the OSHA citation and 

inspection process, and make changes that will ensure fair and consistent OSHA enforcement practices in the home building industry. 

NAHB is firmly committed to OSHA reform in the 109th Congress. We intend to 

work with the members of the appropriate committees and others in the House of 

Representatives to deliver meaningful, responsible OSHA reform legislation to 

President Bush for enactment as soon as possible. 

I thank the Chairman and Members of the Subcommittee for allowing me the opportunity to testify on behalf of the 220,000 member firms of NAHB. We look forward to working with this committee, the Congress, and the administration to pass 

needed OSHA reform. 

Thank you. 

Chairman NORWOOD. Thank you very much for your testimony. 

Frank, you’re now recognized for 5 minutes. 

STATEMENT OF FRANK L. MIGLIACCIO, JR., EXECUTIVE DIRECTOR OF SAFETY AND HEALTH, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, WASHINGTON, DC 

Mr. MIGLIACCIO. Thank you. Mr. Chairman, Members of the 

Committee, my name is Frank Migliaccio, and I am the Executive 

Director of Safety and Health for the International Association of 

Bridge, Structural, Ornamental, and Reinforcing Iron Workers. I 

am here today to testify on behalf of the 3 million members and 

15 unions that make up the Building and Construction Trades Department of the AFL- CIO, where I serve as chairman of the Safety 

and Health Committee. I appreciate the opportunity to testify 

today. Workers in the construction industry suffer more fatal injuries than any other industry sector. 

The building and construction trade has long been a strong proponent of voluntary joint labor-management safety and health initiatives as a supplement to mandatory OSHA enforcement, not as 

a replacement for OSHA enforcement. We believe that any measure 

to substitute OSHA inspections and enforcement with an unproven 

third-party certification and penalty exemption scheme would significantly decrease safety and health protection for workers. 

The GAO’s Workplace Safety and Health Report, dated March 

2004, provided the Chairman of the Subcommittee on Workforce 

Protections, Committee on Education and the Workforce, and 

House of Representatives a state of the OSHA Voluntary Compliance Strategies; it shows promising results, but should be fully 

evaluated before they are expanded. To be effective, safety and 

health programs have to be site-wide and should include the employer and control of the entire site. Evaluations must be based on 

the actual work site, and the worker participation is key to the success of any program. The larger employers already do this and 

have the resources to do this. OSHA needs to focus its resources 

on the small employers and others at high risk. 

The targets of the VPP are generally your larger contractors, the 

1.1 percent of construction employers with more than 100 employees—the employers with 30 percent of the construction workers. 

Yet they suffer only 14 percent of construction fatalities. The larger 

companies usually have safety and health programs already in 

19

place. These programs commonly use some form of voluntary thirdparty or internal performance auditing without legally exempting 

such audits from fact-finding by the court. 

Similarly, safety audits should not be made exempt from court 

fact-findings. The VPP should try and target for small companies 

that employ one to ten employees. These companies employ 23 percent of the construction workers, yet suffer more than 50 present 

of construction fatalities, double the average of the construction industry. Hispanic construction workers make up 16.6 percent of the 

construction workforce, but suffer 19.6 percent of the fatalities. The 

small companies and the Hispanic workforce are the groups that 

need to be reached. 

The Federal Government employs approximately 25 percent of 

the construction dollars. There’s a lot of room for improvement, and 

the government has control over these jobs. On such jobs, safety 

and health programs should be required in the job specifications. 

One job specification requirement should be that every worker in 

their position have an OSHA 10-hour construction workers standard safety and health card. This training is very generic, but requires that workers have some background on safety and health 

training. By requiring this, you reach the small one to ten employee contractors and also the Hispanic workforce, some of which 

do not even know that OSHA exists. 

By providing large contractors with VPP status without inspecting every job site would dilute the health and safety programs they 

have in existence already. Each job site has different subcontractors, supervisors, suppliers, rules and regulations, and a new workforce. Any assumption that you can inspect and/or audit only one 

employer’s work site and predict conditions on other sites is false. 

You must evaluate performance by looking at each site you wish 

to be recognized as a model or VPP status. 

Reducing enforcement and lowering penalties will only lead to 

more unsafe jobs, injuries, and fatalities. Any company that knowingly puts workers in harm’s way should have increased criminal 

and civil penalties placed upon them. The best way to improve voluntary compliance is to pass the Workplace Wrongful Death Accountability Act and the Protect the American Workers Act. Without the passage of these two Acts, the burden is placed on all taxpayers to pay the bill for those employers with uncontrolled hazards, including disability costs, uncompensated medical care, lost 

productivity, lost income tax revenue, and other costs. 

Voluntary protection programs like VPP require a great deal of 

OSHA manpower to provide what amounts to free consulting time 

for those employers or sites which already have some of the most 

effective safety and health programs in existence. 

In order for any VPP program to work, you must have worker 

and employer participation. Any voluntary program must engage 

workers and provide mechanisms for addressing hazards even 

when their immediate supervisors or employers have different priorities. 

In closing, I would like to again thank this Committee for the opportunity to testify in front of the Committee. Thank you. 

[The prepared statement of Mr. Migliaccio follows:]

20

Statement of Frank L. Migliaccio, Jr., Executive Director of Safety and 

Health, International Association of Bridge, Structural, Ornamental and 

Reinforcing Iron Workers, Washington, DC 

Mr. Chairman, members of the committee. My name is Frank Migliaccio, Executive Director of Safety and Health for the International Association of Bridge, Structural, Ornamental, & Reinforcing Iron Workers. I am here today to testify on behalf 

of the 3 million members and 15 unions that make up the Building and Construction Trades Department (BCTD) of the AFL–CIO, where I serve as Chairman of the 

Safety and Health Committee. I appreciate the opportunity to testify today to 

present the BCTD’s views on voluntary OSHA compliance programs including the 

Voluntary Protection Program or VPP. Workers in the construction industry suffer 

more fatal injuries than any other industry sector, and we recognize and control serious occupational hazards every day on the job. 

The BCTD has long been a strong proponent of voluntary joint labor-management 

safety and health initiatives as a supplement to mandatory OSHA enforcement activities. Voluntary compliance programs, which may include internal or third-party 

audits, are a key part of efforts to take the next step beyond minimal OSHA compliance. These should not, however, be seen as a replacement for OSHA enforcement. 

Given that for most employers the average time between OSHA inspections can be 

measured in decades, the unions within the BCTD work closely with our employers 

and site owners (in cooperation with the Construction Users Roundtable) to make 

safety and health a priority in our dangerous industry. Where employers or owners 

want to implement voluntary programs that go beyond the minimal requirements 

of OSHA compliance, we are ready to step up with a highly skilled workforce to 

solve problems and move paper programs into real improvements in working conditions. We believe that any measures to substitute OSHA inspections and enforcement with an unproven third-party certification and penalty exemption scheme 

would significantly decrease safety and health protections for workers. Several proposals have been advanced that include taking away workers’ rights to an OSHA 

site inspection in response to a complaint and permitting warnings instead of citations for most violations. We do not believe that reducing penalties, or shifting 

OSHA enforcement resources to support voluntary efforts by large employers with 

model safety programs, will prevent occupational injuries and illnesses. OSHA 

should have greater flexibility to use workers’ compensation data and other data 

sources to experiment with more effective inspection targeting processes. Occupational injuries and illness cost our economy billions of dollars per year and result 

in preventable pain and suffering. Ignoring existing hazards or reducing penalties 

and paperwork for employers does not control these hazards. These are real problems that need to be recognized and solved on a day to day basis. 

Small employers are at greatest risk, yet are unlikely to participate voluntarily without clear and immediate incentives 

In construction, more than 80% of the establishments have less than 10 employees. These 1–10 employee establishments employ 23% of the construction workforce, 

but they suffer more than 50% of the fatal injuries. Hispanic construction workers 

(60% foreign born) are also at high risk, making up 16.6% of the workforce and suffering 19.6 % of the fatal injuries (2001). The only way very small employers currently participate in programs like those promoted in VPP is if the client/owner of 

the site, or the construction manager on the site requires contractors and subcontractors to participate. Yet OSHA chooses to focus enforcement on the 1.1% of 

construction employers with more than 100 employees. These employ over 30% of 

the construction workforce, and yet they suffer only 14% of the fatalities. Although 

there is always room for improvement, programs like OSHA VPP, focus on large employers with model programs and little need for government assistance. Funds for 

voluntary compliance assistance should be shifted to enforcement focusing on those 

employers that are truly at high risk and high risk worker training. 

Accurately identifying and publicly recognizing model safety programs is of value 

Whether recognition is from private organizations, professional associations, or 

the federal government, recognizing the true top safety performers can raise the visibility of safety concerns. As the number of recognized firms increases and the minimum standards required for recognition decrease, VPP designation is of less and 

less value. Reduced enforcement is not a necessary component of a voluntary program. Increased penalties may provide a more effective incentive. 

Voluntary Compliance is Undermined by Reduced Enforcement and Low Penalties 

Whether it is paying taxes or controlling work site hazards that could kill an employee, most of us voluntarily comply with laws and regulations. Penalties for nonVerDate 0ct 09 2002 13:26 Nov 16, 2005 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 H:\DOCS\21138 NNIXON
21

compliance both create an incentive and are a statement that certain actions are 

unacceptable in our society. Reducing OSHA enforcement and accepting low penalties for violations, says quite clearly that you find killing workers to be an expected part of doing business in high-risk industries. 

The best thing Congress could do to improve voluntary compliance is to pass the 

‘‘Workplace Wrongful Death Accountability Act’’ and ‘‘Protecting Americas Workers 

Act’’ and increase the criminal and civil penalties that are appropriate for willful 

acts which put workers lives at risk. 

If, instead, Congress and OSHA were to reduce the incentives for compliance, the 

effect would be to place the burden on all taxpayers to pay the bill for those employers with uncontrolled hazards including disability costs, uncompensated medical 

care, lost productivity, lost income tax revenue, and other costs. 

For workplace safety programs to be effective, employers that control the work must 

share responsibility for compliance. 

On multi-employer job sites, and on sites where subcontractors, employers of joint 

venture partners, self-employed or temporary workers are simultaneously engaged 

in work, it is common that someone other than a worker’s formal employer controls 

workplace conditions and workplace hazards. OSHA compliance, even in the context 

of a voluntary compliance program, must focus on the entity that is in the position 

to best ensure compliance on a worksite, whether it is the owner, construction manager or general contractor, or other subcontractors. 

Conditions and practices on one site cannot predict practices on other sites 

OSHA has proposed admitting employers to its VPP program based on their 

records on other worksites, or on a sample of worksites. This is extremely problematic. Construction work sites are constantly changing as the project progresses. 

Workers, employers, managers, kinds of work, the safety problems, and the manner 

in which all of these elements interact change continuously. Any assumption that 

you can inspect or audit one of an employer’s work sites and predict conditions on 

other sites, is false. To determine whether to grant an employer VPP status, OSHA 

must evaluate performance at the actual sites to be recognized as model or VPP 

sites. 

Effective compliance programs should not effect enforcement but should effect penalties 

Construction is a complex and dangerous industry, and even with model programs, mistakes are made. Employers who implement effective safety programs 

should receive special consideration in defining penalties. As in other corporate 

crime, the existence of ‘‘effective’’ compliance programs should logically be a consideration in sentencing or setting penalties. It should not simply be an OSHA’s certification of a site as VPP, but the employer’s direct documentation of its effective safety program on the work site, which should legitimately be considered in determining 

appropriate penalties. In other parts of the law, including anti-trust and price-fixing, the Federal Sentencing Commission has defined criteria for effective corporate 

compliance programs. The government does not subsidize or formally approve corporate compliance programs related to these financial regulations. Why is it necessary or appropriate for the government to approve (with VPP status) and subsidize (with free OSHA manpower) large employer corporate compliance programs 

for OSHA? Logically, OSHA compliance should be a part of an employer’s overall 

corporate compliance system. 

OSHA should be required to use the most effective inspection targeting and enforcement strategies 

Because OSHA doesn’t have enough inspectors to reach the millions of US employers, it must depend on news of criminal penalties and citations reaching employers and creating an incentive for them to voluntarily evaluate risks and control hazards. VPP in its current form, third party safety audits, and other voluntary safety 

initiatives may have benefits on the specific site where OSHA provides its free services, but they provide no incentives for other employers to comply. Direct, aggressive, and highly visible enforcement remains the way to maximize visibility and create the most benefit to workers per dollar of OSHA budget. OSHA should pilot and 

evaluate innovative inspection targeting strategies. Evaluations must consider the 

overall impact on the safety and health of the US workforce, rather than the presumably positive impacts on VPP sites as a result of OSHA allocating disproportionate resources to assist a small number of receptive employers with model safety 

programs and already low reported injury rates. 

22

Federal subsidies for the best corporate compliance programs is unnecessary 

Our opposition to VPP or other voluntary programs is not because they don’t 

work, but because they represent an inefficient use of OSHA resources. Voluntary 

programs like VPP require a great deal of OSHA manpower to provide what 

amounts to free consulting time for those employers or sites which already have 

some the most effective OSH programs in the nation. This group of employers would 

employ safety and health professionals even if VPP did not exist. To the extent that 

paper plans are actually moved into the multiemployer workplace, they can be very 

positive, and should be considered in determining penalties but not in inspection 

targeting. Larger employers have corporate compliance programs to oversee legal 

compliance, and OSHA enforcement should allow these compliance efforts to be easily integrated into broader corporate compliance efforts. These programs commonly 

use some form of voluntary 3rd-party or internal performance auditing, without legally exempting such audits from fact finding by the courts. Similarly, safety audits 

should not be made exempt from court fact finding. As with any form of audit, failing to act on identified problems is not good. However, the fact that compliance audits are conducted demonstrates that many employers have decided that the risks 

of not knowing the problems exist is greater. 

Federal OSHA certification (with VPP Star status) of private programs is of limited 

value, unless it is for the government’s contractors and vendors 

Although OSHA involvement can have a positive impact and identify persistent 

safety problems in work sites pursuing VPP status, these are already among the 

safest worksites in the nation. There are a variety of industry consensus standards 

including ANSI A10.38 Construction Safety Programs and the new ANSI Occupational Health and Safety Management Systems Z10 standard, that provide guidance 

for those interested in voluntarily improving their safety performance. Since a variety of trade and professional organizations provide recognition of top performing employers/members, and national and international standard setting bodies have defined guidelines similar to VPP, duplicating these efforts within the federal government at taxpayer expense is of limited value. Efforts to codify voluntary compliance 

programs in the law would inappropriately divert funds from enforcement and training. Corporate compliance programs focused on compliance with financial statutes 

such as anti-trust and price-fixing laws function effectively without government certification or personalized government assistance too employers interested in developing these programs. Private consultants, third-party auditors, and legal specialists 

implement programs with no government involvement until the effectiveness of such 

a corporate compliance program is considered in the sentencing phase of a trial to 

support reductions in penalties. 

Worker Participation or Employee Involvement is Central to any Voluntary Program 

Workers must be involved in any effective safety program. Any voluntary program 

must engage workers, and provide mechanisms for addressing hazards even when 

their immediate supervisor or employer have different priorities. The importance of 

this involvement is made clear in OSHA VPP and in ANSI consensus standards. 

OSHA’s proposed budget eliminates all funding for safety and health training 

grants. This reflects a fundamental misunderstanding of the importance of employees in identifying and controlling hazards in the workplace. While safety and health 

is the employer’s responsibility, if workers themselves are not able to anticipate or 

recognize hazards and work with their employer to implement controls, then construction workers will continue to die on the job. These OSHA training funds should 

be renewed and increased. 

I would also like to submit for placement in the record 

1. BCTD comments on OSHA VPP in construction dated November 1, 2004 

(OSHA Docket No. C–06). 

2. Statement of Lynn Rhinehart, Associate General Counsel, AFL–CIO. Submitted 

to the Subcommittee on Employment and Workplace Safety Of theSenate Committee on Health, Education, Labor and Pensions On The Occupational Safety and 

Health Act and Small Employers. May 10, 2005. 

[The information referred to has been retained in the Committee’s official files.] 

Chairman NORWOOD. Dennis Morikawa, how did I do that time? 

Mr. MORIKAWA. You did very well. 

Chairman NORWOOD. OK, you’re recognized for 5 minutes. 

23

STATEMENT OF DENNIS J. MORIKAWA, ESQ., MORGAN, LEWIS 

& BOCKIUS LLP, WASHINGTON, DC 

Mr. MORIKAWA. Thank you. Mr. Chairman and distinguished 

Members of the Subcommittee, I am very pleased and honored to 

be here today to provide commentary to the Subcommittee in pursuit of your very valuable task. 

My name is Dennis Morikawa, and I am a partner in the law 

firm of Morgan, Lewis and Bockius and Philadelphia, Pennsylvania. I am past management co-chair of the Committee on Occupational Safety and Health Law of the American Bar Association. 

Since 1974, I have focused my practice on occupational safety and 

health law issues from enforcement matters to rulemaking, and in 

the last several years advising clients with respect to their participation in the very valuable OSHA cooperative compliance programs, including Voluntary Protection Programs or VPP’s, and 

OSHA’s Strategic Partnerships or OSP’s as they are referred to. 

Now, I think it’s very clear that the magnitude of the task facing 

OSHA in its duel role of providing enforcement as well as cooperative programs is a daunting job. The realities are and there over 

seven million workplaces in the United States. OSHA currently 

conducts inspections at the rate of 39,000 inspections per year, but 

at that rate, as Mr. Owens correctly points out, it would take 

OSHA almost 180 years to visit every single workplace in America 

just once. 

With respect to cooperative programs, which I think have been 

very, very successful, VPP’s, Partnerships and Alliances, the reality 

is they are scarcely 1500 such programs in the United States when 

faced with more than seven million workplaces. 

Now I am here to tell you today, Congress needs to support Cooperative Compliance efforts by OSHA, and I think it’s very, very 

important. What can be done? A former partner of mine once told 

me something that I have never forgotten. He said that if you don’t 

know where you’re going, any road will get you there. Well, I’m 

here to tell you today, that we need a plan. There has to be an approach. We have to take into account OSHA’s limited resources and 

its abilities with respect to enforcement and cooperative programs, 

to face the reality that Congress can indeed help OSHA in this very 

valuable task. 

First, clarify, direct and support OSHA in working with employers in determining and preventing workplace accidents through 

these types of cooperative programs. 

Second, and very importantly, remove disincentives that discourage employers from engaging in voluntary compliance efforts, and 

create incentives for employers to engage in these voluntary compliance issues, such as voluntary auditing, and third-party auditing. 

Current policies, while calling for voluntary self- audits as it currently exists, encouraging employers on one hand to voluntarily 

self-audit their compliance with OSHA standards, but at the same 

time, this policy allows OSHA to use the results of these self-audits 

against these employers in enforcement actions. This makes no 

sense. Indeed, we believe this has had a chilling effect on employers’ willingness to engage in self-critical analysis of OSHA compliance issues. 

24

Now, we urge the Subcommittee to provide immunity for these 

self-audits so that employers will be incented to engage in this very 

valuable activity. I am not suggesting that Congress remove enforcement powers from OSHA, indeed, OSHA enforcement activity 

is very important to its mission. But we have to face the stark reality and that is OSHA simply can get the job done by itself. It 

needs help from the community that it regulates. 

Voluntary programs such as VPP, OSHA Strategic Partnerships, 

alliances and other programs reflect a growing acknowledgment 

that the industries themselves can and should be encouraged to 

collaborate and join hands to find common solutions through a 

process of acknowledgment, commitment, identification, 

enablement, and execution. These programs, indeed, leverage 

OSHA’s resources dramatically by providing maximum impact on 

large numbers of employees that simply could not be reached by 

OSHA enforcement efforts. Therefore, we believe these are the 

kinds of programs that the Subcommittee should back. 

The National Electrical Transmission and Distribution Partnership is one such example. A combination of union and nonunion 

companies. Nonunion companies and the IBEW, the International 

Brotherhood of Electrical Workers, banding together—these are 

prime competitors in an industry all across the country who have 

joined together and joined hands to face the realities of workplace 

injuries, and try to bring down injuries in their industry. They 

have collaborated and joined in a partnership with OSHA. A high 

hazard industry has for the first time confronted these issues and 

is working successfully now to reduce injuries in their industry—

a great achievement. I will be happy to answer questions about 

that later. 

There’s nothing in the Act regarding any of these programs. Congress should clarify and direct OSHA regarding them. But even 

with cooperative programs, OSHA doesn’t have the resources to 

partner with every workplace in America. Congress needs to find 

ways to encourage employers to help direct their safety and compliance issues themselves. We believe that providing immunity for 

self-critical analyses and audits is one tool that can be used by employers to accomplish those valuable goals. 

I appreciate the opportunity to address the Committee today, and 

I will be available to answer questions. 

[The prepared statement of Mr. Morikawa follows:]

Statement of Dennis J. Morikawa, Esq., Morgan, Lewis & Bockius LLP, 

Washington, DC 

Chairman Norwood and members of the subcommittee, I am pleased and honored 

to be here today. Thank you for your kind invitation. 

By way of introduction, I am a partner at the law firm of Morgan, Lewis & 

Bockius LLP. I work in Philadelphia, Pennsylvania. My practice focuses on advising 

employers regarding occupational safety and health matters—both compliance advice and litigation of citations and penalties. I have been practicing in this area of 

law for more than 30 years–since 1974. I am a past Management Co–Chair of the 

Occupational Safety and Health Law Committee of the American Bar Association. 

I am testifying today on behalf of myself—but with the experiences of many clients 

behind me. 

I am sure that you are aware of the magnitude of the task confronting the Department of Labor’s Occupational Safety and Health Administration (OSHA). OSHA 

is responsible for enforcing the Occupational Safety and Health Act (OSH Act) and 

its regulations and standard for the 7.2 million workplaces in the United States. As 

25

1The current VPP requirements exclude from participation any facility whose DART rate is 

above its industry average. Accordingly, those employers whom OSHA identifies as having the 

high injury and illness rates in the country—presumably those most in need of compliance assistance—are excluded from participation in VPP. 

you are aware, no employer is exempt from the OSH Act, no matter how small. Over 

the past five years OSHA has conducted an average of 39,000 inspections per year. 

At that rate, if OSHA started tomorrow, it would take them 184 years and 7 months 

to inspect every workplace in America once. 

Obviously OSHA does not have the resources to rely solely on compliance inspections to enforce the OSH Act and Standards. Thus, almost from its inception OSHA 

began exploring compliance assistance efforts under which individual employers 

partner with OSHA to reduce injuries and illnesses and to comply with OSHA 

standards. In exchange for their undertakings, some employers have enjoyed immunity from or deferral of general scheduled inspections, although they are not exempt 

from either employee complaint inspections or inspections triggered by worksite fatalities or catastrophes. This immunity or deferral offers employers a respite from 

traditional enforcement and leverages OSHA’s limited resources. In addition, 

OSHA’s compliance assistance efforts offer employers the ability to resolve difficult 

compliance issues in non-adversarial settings. Unfortunately, skeptics of voluntary 

compliance measures both inside and outside the a seek to limit OSHA’s efforts. 

Further, OSHA routinely seeks employer self audits for use against employers in 

citation cases. These actions unnecessarily limit the cooperative compliance absolutely necessary to prevent accidents. 

Background On OSHA’s Cooperative Programs and Incentives 

A. The Voluntary Protection Program 

Although it arose out of the agency’s earliest efforts at cooperative compliance, 

OSHA’s Voluntary Protection Program (VPP) was not an official program until the 

Reagan administration formally implemented it and recognized the first worksite in 

1982, more than 10 years after the effective date of the OSH Act. VPP was designed 

to recognize and promote effective safety and health management. Under VPP, management, labor, and OSHA establish a cooperative relationship at an individual 

workplace with a strong safety and health record (primarily identified by a days 

away, restricted and transfer (DART) injury and illness rate below the industry average) 1, with the following understandings: 

1. management agrees to operate an effective program that meets an established, 

detailed set of criteria; 

2. employees agree to participate in the program and work with management to 

assure a safe and healthy workplace; 

3. OSHA initially verifies that the program meets the VPP criteria; then OSHA 

publicly recognizes the site’s exemplary program and removes the site from 

routine scheduled inspection lists (though OSHA may still investigate major 

accidents, valid formal employee complaints, and chemical spills); and 

4. OSHA periodically reassesses the site to confirm that it continues to meet VPP 

criteria (every three years for the STAR program; every year for the MERIT 

program). 

OSHA has published guidance for Voluntary Protection Programs, which enumerate the specific requirements of VPP. After initial application and approval of 

their safety management systems and safety and health programs, employers are 

subject to a compliance inspection by a team of OSHA enforcement personnel. Any 

noncompliance identified during the inspection must be corrected within 90 days but 

no citations or penalties will be issued. Unfortunately, as currently established, 

under VPP OSHA will only partner with those employers who already have low injury and illness rates and excellent programs. By setting application criteria for its 

primary cooperative program so high, OSHA has eliminated the perceived risk of 

partnering with an employer to the detriment of those employers who could probably benefit most from cooperative programs. 

B. Consultation Service and SHARP 

Although it was the first formal compliance assistance offered by OSHA, the Consultation Service did not become a cooperative program with incentives from federal 

OSHA until after VPP was established. As originally established, and currently operated, the Consultation Service allows employers to request an on-site inspection 

and review of safety and health compliance from OSHA. Rather than reviewing compliance or conducting an inspection itself, OSHA uses state government staff—usually through a state department of labor—or consultants to conduct the inspection. 

The results of the inspection are kept confidential and not normally shared with 

26

OSHA. Rather, a participating employer’s only obligation is to commit itself to correcting ‘‘serious’’ job-safety problems and health hazards identified during the inspection. In a situation where a serious violation would exist under OSHA criteria, 

the employer and consultant are required to develop and agree to a reasonable plan 

and schedule to eliminate or control the hazard. Consultants will offer general approaches and options and they may also suggest other sources for technical help. 

In rare instances, a consultant may find an ‘‘imminent danger’’ situation; if so, the 

employer must take immediate action to protect its employees. 

After working with Consultation Services for several years, OSHA established the 

Safety and Health Achievement Recognition Program (SHARP) whereby small employers, which have had a consultation inspection, can request recognition. To participate in SHARP, an employer must: • Request a consultation visit that involves a complete hazard identification survey; • Involve employees in the consultation process; • Correct all hazards identified by the consultant; • Implement and maintain a safety and health management system that, at a 

minimum, addresses OSHA’s 1989 Safety and Health Program Management 

Guidelines; • Lower the company’s Lost–Workday Injury and Illness rate (LWDII) and Total 

Case Incident Rate (TCIR) below the national average; and 

• Agree to notify your state Consultation Project Office prior to making any 

changes in the working conditions or introducing new hazards into the workplace. 

Certification of compliance with these requirements will qualify the small employer for a one-year exemption from routine OSHA inspections. 

While such state-supported programs constitute an important step in closing the 

‘‘credibility gap’’ between OSHA and private employers, employers participating in 

this program sometimes find that the state-provided consultants are not fully cognizant of OSHA’s standards, because they do not enforce them routinely. In the 

worst cases, employers utilizing the Consultation Service have found that consultants have failed to identify OSHA-covered hazards when federal OSHA conducts an 

inspection and issues citations. In addition to substantive problems, employers often 

find that the states sometimes lack adequate funding and personnel to conduct inspections. Because of their limited funding, states limit or prioritize inspections in 

favor of small employers and exclude larger employers. Even where small employer 

requests for inspections are approved, it may take weeks or months to schedule the 

inspection. Finally, like VPP, membership in SHARP is predicated on being below 

the national average injury rate for the employer’s industry thus excluding many 

employers. 

C. OSHA Strategic Partnerships 

The OSHA Strategic Partnership Program for Worker Safety and Health (OSPP), 

adopted on November 13, 1998 and revised December 9, 2004, is an expansion and 

formalization of OSHA’s pilot programs and experiments with voluntary compliance 

outside of VPP. In a partnership, OSHA enters into an extended, voluntary, cooperative relationship with groups of employers, employees, and employee representatives 

(sometimes including other stakeholders, and sometimes involving only one employer) in order to encourage, assist, and recognize their efforts to eliminate serious 

hazards and achieve a high level of worker safety and health. OSHA and its partners have the opportunity to identify a common goal, develop plans for achieving 

that goal, and cooperate in implementation. Most of the worksites that have chosen 

to partner with OSHA are small businesses, with an average of 22 employees. Many 

of these partnerships focus on areas of concern addressed in OSHA’s Strategic Plan. 

Some of these partnerships are seeking solutions to silica and lead exposures and 

serious hazards in the nursing home, food processing, shipbuilding, logging, and 

construction industries. Unlike VPP, employer eligibility criteria for entry into a 

partnership are not rigidly defined but OSHA maintains a discretionary ability to 

refuse to partner with any employer. Accordingly, employers seeking to partner with 

OSHA must demonstrate their commitment to OSHA and propose a partnership 

that is of value to the agency. 

Among other benefits, participating in a partnership program with OSHA may 

provide employers with Onsite Non-enforcement Verification inspections where no 

citations or penalties are issued. It is important to understand, however, that all 

partnerships must stipulate that partnering employers remain subject to OSHA inspections and investigations in accordance with established agency procedures. The 

agency’s policies do, however, allow deferral of programmed inspections where focused verification inspections are part of the Partnership Agreement. 

27

Advantages and Disadvantages of Cooperative Programs 

Although the programs outlined above are similar to one another, there are some 

key differences that employers must consider. A critical difference between Strategic 

Partnerships and VPP relates to the so-called ‘‘immunity provision,’’ which exempts 

VPP sites from general scheduled inspections. OSHA has been careful to explain 

that Strategic Partnerships are different from VPP in that they do not offer complete exemption from inspections and that employers that fail to abate alleged safety and health violations identified during the course of the audit and review process 

could find themselves subject to inspections and citations for noncompliance. Similarly, utilization of the Consultation Service does not provide inspection immunity 

or deferral unless the employer takes the further step of certifying its programs and 

allowing verification of abatement of all Serious violations. 

On the other hand, if an employer is looking to simply further its working relationship with OSHA without attempting to assert itself as the best in industry in 

all areas of health and safety, a Strategic Partnership may be appropriate. While 

these programs do not necessarily provide exemptions from inspections similar to 

VPP, employers that are willing to make the commitment to engage in a voluntary 

compliance program under a partnership arrangement with OSHA can expect to 

enjoy distinct but intangible advantages not generally available to an employer that 

does not enter into such a partnership. These advantages include, for example, constant interaction with OSHA with respect to compliance programs and the establishment of a cooperative relationship. 

One such partnership I had the privilege of helping negotiate is the Electrical 

Transmission and Distribution Construction Contractors Partnership. This national 

partnership among OSHA, the International Brotherhood of Electrical Workers 

(IBEW), the major electrical transmission and distribution contractors—normally 

fierce commercial competitors—both union and non-union, the Edison Electric Institute, and the National Electrical Contractors Association, was formed when the 

CEOs of these contractors—representing more than 70% of this industry—decided 

that their high hazard industry was not preventing enough accidents. These employers did not start with the best injury rates—indeed for the first time that I can remember OSHA partnered with a group that had high injury rates. Instead they 

started with a plan to reduce injury rates by doing all that they could to review 

their accidents as a group, to identify the causes of those accidents, to establish general qualifications for performing the work, for training, and for best practices. They 

started with an agreement to work as a group to consistently apply their actions 

across the country and to raise the bar for everyone. Even though this partnership 

involves no inspection or citation immunity—and indeed OSHA’s lawyers demanded 

that right of OSHA to use information generated by the partnership against the 

participating employers be maintained—there was opposition to the partnership 

from within OSHA. The argument was that OSHA would be stopped or limited in 

its ability to cite these employers for violations, particularly willful violations, in the 

event of an accident or inspection because the employers were doing all that the 

could—in conjunction with OSHA, the IBEW, and the trade associations—to prevent 

accidents. Thankfully, smart and courageous people within OSHA were willing to 

work with industry to prevent accidents and not simply to wait and develop a patter 

of blame and try to punish those who have accidents. And this partnership is working. It has identified four areas of concern with respect to fatalities and is working 

to develop best practices to address these areas. It has also reviewed voluminous 

data for benchmarking, worked to develop training for employees and supervisors, 

and developed best practices to be implemented by partnering employers. In part 

through this partnership, OSHA has worked to overcome its role as simply an investigator of fatalities and accidents and to become a partner in the prevention of accidents. Prevention, not punishment, should remain OSHA’s primary mission. 

Neutrality: Voluntary Self–Audits Without OSHA Involvement 

In early 2000, I was a member of an advisory committee requested by then Assistant Secretary Charles Jeffress to review a draft of a self audit policy prepared by 

OSHA. The audit policy was a response by OSHA to growing congressional criticism 

of its enforcement policies, which permitted OSHA compliance officers to seek employer self-audits during the course of compliance inspections. A congressional bill 

introduced by Representative Cass Ballenger in 1998 would have made employer 

self-audits immune from disclosure, in order to encourage employers to evaluate 

their own OSHA compliance without fear that their own analyses could later be 

used against them in subsequent enforcement actions. On July 28, 2000, OSHA published its Final Policy Concerning the Treatment of Voluntary Employer Safety and 

Health Self–Audits in the Federal Register. Unfortunately many of the advisory 

committee’s comments were rejected in the final version of the policy. 

28

OSHA’s audit policy has four main components. First, it provides that OSHA will 

not ‘‘routinely request self-audit reports at the initiation of an inspection.’’ Second, 

the audit policy provides that where a voluntary self-audit identifies a hazardous 

condition and the employer corrects it prior to an OSHA inspection (or a related accident, illness, or injury triggering the inspection), no citation will be issued so long 

as steps have been taken to prevent recurrence of the condition. Third, it provides 

that where a voluntary self-audit identifies a violation, so long as the employer is 

responding in ‘‘good faith,’’ OSHA will not use the audit report to cite the employer 

for a willful violation. Finally, the audit policy provides that a self-audit may be 

used for a good faith reduction in any penalties assessed. 

While the audit policy represents a so far successful attempt by OSHA to head 

off Congressional criticism and to attempt to assure the regulated community that 

it will not be seeking self-audits as part of routine compliance inspections, there are 

some aspects of the policy that are problematic. For example, OSHA’s policy on the 

avoidance of willful violations does not offer clear guidance; worse, it suggests that 

for an employer who is not acting in ‘‘good faith’’—or not taking ‘‘reasonable, timely, 

and diligent’’ action after the audit—its audit can be evidence of willfulness. 

The most troublesome aspect of the policy, however, is part C(1)(b), which provides that compliance officers can request an employer audit during the course of 

an inspection. This includes situations where OSHA ‘‘has an independent basis to 

believe that a specific safety or health hazard warranting investigation exists.’’ Unfortunately, this exception is so broad that it seems to encompass the entire rule. 

The policy permits any compliance officer to request an audit so long as he believed 

a safety or health hazard exists. Of course, one might reasonably suppose that the 

very reason a compliance officer was conducting an inspection was because of a belief that such a hazard might exist; and indeed, this provision would appear to be 

met in the event of any employee complaint or referral investigation. In addition, 

the audit policy describes situations involving fatalities or catastrophic accidents as 

incidents in which OSHA has a ‘‘significant interest’’ in evaluating whether the employer had prior knowledge of circumstances that could have been corrected prior 

to the accident. Thus OSHA might more often request self-audits in the very cases 

in which employers have the most exposure. Indeed, in our experience representing 

clients we have often found this to be the case with OSHA inspectors routinely asking for copies of self audits, audits by consultants, and even subpoenas for insurance 

company audits. 

Overall, the current policy does not do enough to protect against abuse. As it now 

stands, there is not enough encouragement of employers to audit their worksites voluntarily. What is needed is to afford employer audits protection from discovery in 

all but the most exigent cases. Otherwise, employers’ concern about their own work 

being used against them will inhibit the undertaking of the sorts of detailed and 

documented audits that could really make a difference in the safety and health of 

America’s workers. 

Future Prospects for Cooperative Programs and Voluntary Compliance Efforts 

It is obvious from OSHA’s commitment—in both monetary and personnel resources—that it will not abandon cooperative programs during this or any administration. The stated goal of the Agency is increased cooperative participation. Indeed, 

as of January 31, 2005 each program has an all time high participation rate: 1231 

VPP worksites more than 215 active Partnerships. 

The question should be: What limits employer participation in cooperative programs? Why aren’t more employers attempting to obtain the benefits offered by the 

cooperative programs? As noted, historically VPP eligibility requirements made the 

program available only to the employers who already have the lowest injury and illness rates in their industry and excellent written programs. Through retention of 

absolute discretion regarding with whom it partners and the requirements it imposes, OSHA has similarly limited the number of partnerships. Thus, even if a given 

employer was willing to undertake the burden and commitment of VPP or a Partnership they might be excluded. OSHA maintains these exclusions in order to control the perceived risk of partnering with employers and to maintain maximum enforcement ability against employers. OSHA should eliminate these artificial barriers. OSHA should not allow its interest in maintaining the ability to cite employers to the maximum extent possible prevent the entry of willing and committed employers into cooperative programs. As is expressly stated in partnership agreements, 

employers entering into partnerships remain subject to programmed, complaint and 

fatality inspections in accord with agency procedures. Further, both VPP and partnership agreements provide that employers remain subject to citation and penalty. 

Congress should continue to review OSHA’s programs and policies to make sure 

that eligibility requirements are not unduly limiting the number of employers parVerDate 0ct 09 2002 13:26 Nov 16, 2005 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 H:\DOCS\21138 NNIXON
29

ticipating in cooperative programs. In addition, because OSHA does not have the resources to partner with every employer in America and actively excludes some employers, Congress should protect self audits conducted by employers from disclosure. 

While such protection would not be the same as the citation and penalty free inspections conducted by OSHA in VPP, SHARP, and partnerships, it would encourage excluded employers by removing the existing disincentives. I for one am in favor of 

any measure that would help an employer explain how it prevented an accident, 

rather than having to explain how a fatality occurred. 

Chairman NORWOOD. Thank you very much, gentlemen. Very interesting testimony from all of you, and I look forward to everybody 

asking some questions. 

Hopefully, you will be willing to submit some answers in writing, 

because we certainly can’t get all of the questions asked. But 

there’s a lot more I would like to know, and maybe we can put into 

the record. 

With that, Mr. Kline, you are recognized for 5 minutes for questioning. 

Mr. KLINE. Thank you, Mr. Chairman, and thank you, gentlemen, all for being here today. Interesting how we got to the first 

name basis here very quickly. The names don’t look quite that hard 

to me, Mr. Chairman. 

Chairman NORWOOD. Well, for now, some of them. 

Mr. KLINE. Oh, no, no. 

[Laughter.] 

Mr. KLINE. No, no, I’m following up on your lead here. I thought 

that was very well, very well done. 

I believe I can say that all of us on this Committee, and I know 

all of you down there, want to see safe workplaces. I think it’s beyond question that as currently configured OSHA simply doesn’t 

have the resources or the number of people to go and inspect every 

site, particularly challenging for home builders where the site exists for 90 days or so. So we have to look for ways to make it possible to ensure that our employers are providing safe workplaces 

for our employees in some sort of a reasonable way. 

Mr. Morikawa—I’m trying, Mr. Chairman. We’re working on it 

here. I think you stated very well when you say that OSHA doesn’t 

have the resources and we have to find a way to do this, and with 

voluntary agreements and third parties and so forth. 

I want to underscore and I want you to expand on that just a 

little bit. 

But I want to underscore that certainly now when we are spending our resources in expanding our capability to defend Americans 

in homeland security and supporting our defense forces as we fight 

in this global war on terror overseas, the notion that we could possibly expand OSHA at this time to the number of inspectors and 

employees it would take to police the work site is just not reasonable. So we do have to look for some alternative sources. 

You mentioned, and I got a little quote here, that it may be necessary to create third-party audit privilege, and to prevent the 

audit from being used in outside litigation. Could you expand on 

that and tell me also if we create such a privilege, how do we resolve the issue of companies that receive an audit and then don’t 

do anything to correct the legitimate safety concerns that were 

identified in that audit? 

30

Mr. MORIKAWA. Mr. Kline, the issue of self-critical analysis and 

self-audits has always been a topic of some controversy, because 

there was always a concern expressed and your question certainly 

includes that, that there are going to be employers in the United 

States who audit but don’t correct violations as they find them. 

My personal experience has been that companies that actually go 

to the trouble to engage in a self-audit program do so with the best 

intention in mind, with the purpose of correcting those violations. 

In other words, it would make little sense to self-audit your compliance with OSHA standards and then decide to do nothing about it. 

I have seen many, many clients that we represent and represented by other companies in the United States who engage in 

self-auditing on a regular basis. They do that because they want 

to know what their workplace conditions are, and what are the 

causes of accidents they are experiencing. 

The Homebuilders do this kind of activity. The transmission and 

distribution electrical construction contractors have engaged in this 

activity, and they have found remarkable things in these audits. 

They have found things that they could discuss, they can analyze, 

and they could develop rules and procedures to prevent accidents 

in the future. That’s the valuable function of auditing. 

Many times people have criticized OSHA because OSHA tends to 

be an accident investigator. OSHA comes in and they investigate 

totality. An OSHA official once told me something that I’ll never 

forget. He said, ‘‘We come in and investigate a workplace facility. 

In that sense we’ve failed, because now we are investigating something that happened at a workplace that we didn’t prevent or 

couldn’t prevent.’’

I think self-auditing does provide a tremendous means for identifying and heading off the causes of injuries and fatalities in the 

workplace, and that’s why I think auditing is such a valuable function. 

Now, auditing should have an immunity for this reason. If every 

employee that engaged in self-auditing believed that OSHA would 

then walk in and use those audit results against them in enforcement proceedings, in litigation, they would be disinclined to do that 

for practical reasons, not creating a paper trail or creating a record 

that could be used against them, as an admission or as a legal matter. 

It is important to engage in this type of self-auditing, and for 

Congress to encourage self-auditing because it will expand the 

scope of compliance to many, many more workplaces than OSHA 

can currently reach through their enforcement efforts, or even their 

formal compliance efforts. So we applaud this type of approach. We 

support companies that do this. 

But we believe that we need Congress’s help to try to make this 

an institutional requirement, a codification, a procedure that would 

be followed and supported by Congress, to let everybody know that 

Congress supports voluntary efforts in the United States to accomplish safety and health goals that can’t be accomplished just by the 

agencies themselves. 

Chairman NORWOOD. Thank you, Mr. Kline. Good question. Mr. 

Owens, you are now recognized. 

Mr. OWENS. I yield to my colleague from California, Ms. Woolsey. 

31

Ms. WOOLSEY. Thank you. Thank you, gentlemen. I heard most 

of you. I’m sorry that I got here late. 

All right, here’s the deal on resources. If OSHA was valued by 

our leaders, by our budgets, by our government, it would be funded, it would be staffed, we would have the resources to do what is 

necessary to prevent injury and consider and hold our workers in 

the highest regard. 

But we don’t do that. We instead make sure that the large corporations have huge tax breaks, and we could use that money to 

protect our workers. 

Now, on the other hand, injuries, death—that’s very costly, not 

only to the family, if it’s the breadwinner, anybody in the family. 

The company costs just soar with insurance and workers’ comp 

when that happens. So it makes good sense that good employers, 

smart employers, are going to take care of their workers from the 

get-go. 

But what we’re dealing with here is not that good, heads-up employer, whom you all represent when you’re sitting here talking to 

us. We’re talking about the employer that not only ignores an 

audit, but also would ignore a near-miss and pretend that nearmiss wasn’t—or couldn’t tomorrow be somebody’s eye being taken 

out, or something, or a death. But sometimes this employer will actually ignore a real serious injury or death. 

To give an employer the right to self-audit is a big mistake. If 

somebody can tell me, up there, how we could take that irresponsible employer and give them the right to—the fox in the hen 

house—to oversee these programs, I’ll listen some more. But maybe 

we could start at the head of the table. Why would that employer 

do the right thing when they are not doing it now? 

Mr. TURNIPSEED. From my experience, a lot of these employers 

don’t really understand what the requirements are. It’s not so 

much an obvious thing of trying to not follow the laws and regulations. A lot of them are simply ignorant of the requirements. 

I honestly believe by going to a voluntary program, where there 

is some relief from penalties, that would encourage those folks to 

bring in someone to look at them. 

Ms. WOOLSEY. OK. Now we will move on to the next one. I’m 

going to tell you that any employer that is ignorant of OSHA laws 

now hasn’t been around very long. I mean, that is just—I can’t believe that. 

Mr. PRESSLY. Thank you, Ms. Woolsey. I would love to address 

that. I’m a very small businessperson from North Carolina, and I 

have usually between 10 to 13 employees. Because of the close 

proximity, I have—not to impose on employees, but I have a personal interest and knowledge of what’s going on in their lives. A 

technician that has been with me 7 years yesterday lost his wife 

from lung cancer. I know these things. I know in a very personal 

sense what their health and their safety means to these men and 

women who are on my team. 

Ms. WOOLSEY. OK. So you’re doing the right thing, right? 

Mr. PRESSLY. For a handful of reasons. 

Ms. WOOLSEY. OK. 

Mr. PRESSLY. For personal interest. Second, I know as a small 

businessperson how costly it is to lose a key person, or to lose any 

32

person—whether it’s the training, recruitment, or missing production that takes place because a person is injured. So I wanted to 

say that at least from my personal experience, and the many folks 

that I work with, they care about their team. 

Ms. WOOLSEY. Right. 

Mr. PRESSLY. They care about their team, the team members——

Ms. WOOLSEY. What about your competitor who is going to turn 

their backs on their workers, because in the short-term is less costly to them to have poor work? 

Mr. PRESSLY. I won’t speak for anyone else, or characterize the 

thoughts of anyone else. But certainly in my business, as a small 

homebuilder, I know the financial cost that the loss or injury an 

employee makes to my bottom line, and I am not willing to take 

that chance as best I can. 

Ms. WOOLSEY. Because then we should never have any accidents 

or injuries. Frank, do you want to respond to this? 

Mr. MIGLIACCIO. Yes, ma’am. I have listened to what everybody 

else has said has so far, and it is usually the small contractor. It 

is that one to ten, and a good example was an accident that occurred in—it was a trenching accident in South Carolina at a 

school were two Hispanic workers were killed. They were engulfed 

in the trench. What happened here was the contractor probably—

maybe knew, maybe didn’t know what the rules were. 

A lot of your contractors, smaller contractors, especially who are 

in business for two or 3 years, and then they’re on their way. If 

they are—if their insurance mod does go up, you’re going to see 

them change their name to something else, and go into business 

and start on again. 

What happens when you have a company that doesn’t care about 

their people—that’s that type of company right there, if there had 

just been some sort of a training mechanism, and I think that the 

esteemed gentleman to my right here, David, does have training. 

He showed there’s training given to his people. 

You have to train the people, you have to let them know what’s 

out there. Like I said in my oral statement, a lot of people don’t 

know that OSHA exists, and most of those people are minorities, 

the Hispanic minorities. 

Chairman NORWOOD. Ms. Woolsey, your time has expired, but I 

would like to ask Mr. Morikawa to respond to your question. 

Ms. WOOLSEY. Thank you very much, Mr. Chairman. 

Mr. MORIKAWA. Thanks, Ms. Woolsey. To respond to your question, my experience in representing companies in a wide variety of 

different industries has shown that employers that Frank has just 

identified who don’t care don’t generally audit, either. 

Ms. WOOLSEY. Right. 

Mr. MORIKAWA. They don’t care so they don’t audit. They are not 

trying to find out if they are in compliance or out of compliance 

with OSHA standards. Companies that do care do audit. 

The issue here is does OSHA lose anything? The safety and 

health in America lose something by the fact that an employer audits and sometimes doesn’t correct. 

No. 1, the rule that we are asking for, the support from Congress 

that were asking for, relates to the vast majority of good employers 

that do engage itself auditing and deserve this type of immunity. 

33

You can’t make a rule based on the fact that you have some bad 

apples who may audit but not correct violations. No. 1. 

Second, with respect to OSHA’s rights to inspect these workplaces, OSHA loses nothing in this. OSHA can still inspect workplaces and indeed they do. But we have seen in many cases is 

OSHA comes in and inspects an employer, and in the process of 

that inspection, they ask for the self audits. 

Now, they can look into the workplace, they can inspect it, they 

can talk to employees, they can examine documents, all perfectly 

within their rights. All of that is made available through the investigation process. 

What we’re talking about is a small little category of self-audits 

that a company has done, which OSHA is now seeking, notwithstanding asking employers to engage in it. That’s why we think immunity is important. 

Ms. WOOLSEY. Mr. Chairman, may I just——

Chairman NORWOOD. No ma’am, time. 

Ms. WOOLSEY. I’m not going to ask another question. I just wanted to finish my thought. 

Chairman NORWOOD. Your time really is up, and it’s somebody 

else’s turn, and we have gone way over on your time out of courtesy 

to you. 

Ms. WOOLSEY. And there is five panelists. 

Chairman NORWOOD. I would like to remind Members that we 

are trying to stay in 5 minutes. If you want to ask a question that 

requires an answer from all four witnesses, please ask it first. 

I now recognize Dr. Price for 5 minutes. 

Mr. PRICE. Thank you, Mr. Chairman. I want to thank each of 

you for coming to be with us today as well, and I appreciate your 

testimony. I think it is once again important to mention that all 

of us up here are interested in safety on the job site, and the question is how do you get there. 

In my experience, in my district, I believe and understand that 

the employers that I work with are interested and safe work sites. 

Their interest in safety for their employees. I also understand and 

appreciate that the three biggest cost drivers for doing anything or 

taxation, litigation and regulation, and we can regulate people out 

of business. There is no doubt about it. 

Mr. Migliaccio, how was that? 

Mr. MIGLIACCIO. Perfect. 

Mr. PRICE. I appreciated your testimony and I am left with a 

question about how—you were talking about the need to look into 

the small employers—you have got to get down and find those folks 

that are 80 percent, as Mr. Pressly said, of the folks out there that 

are building homes in this instance. 

How would you do that? How do you get down to the small employers? Do you hire an OSHA inspector for every single job site? 

Mr. MIGLIACCIO. No sir, that’s not feasible. Like everybody has 

said already, there’s not enough money or inspectors to go around 

like that. 

Mr. PRICE. How do you do it? 

Mr. MIGLIACCIO. First of all, I guess I was there with a small employers that are constantly having accidents. If they’re allowed to 

keep bidding, say, a Federal or State funded job, that’s ridiculous. 

34

Mr. PRICE. So you look at the outliers? 

Mr. MIGLIACCIO. I would look at the outliers right there first. If 

there is a problem with this, I would say, well you know, I don’t 

think I would let you bid on a job for, say 5 years, there would be 

a penalty to it. 

What I would do is try to get that same small employer to start 

some sort of informational highway to their workers, letting them 

know what’s going on, what is expected of them, safety talks, whatever it takes. The insurance industry could regulate this also by allowing the small businesses to compete with a lower premium if 

they did offer some sort of informational highway to their workers. 

Mr. PRICE. If we’re looking at the outliers then we’re going after 

the fact. Right? We’re waiting for the accident to occur, and then 

going after the fact? 

Mr. MIGLIACCIO. OK, if you’re looking at the accident occurring, 

yes sir. The other way that I would do it is just go around and start 

making it before they even did the work, some sort of prerequisite 

or a specification in the job bids, either by the owner or the insurance industry, to show that they do have a record, they do have 

something that shows that they have a safety program. 

Mr. PRICE. You would do that for all homebuilders? 

Mr. MIGLIACCIO. I would do it for as many as I possibly could. 

That would be for one that has been in business for 1 year, or 5 

years, or 50 years. 

Mr. PRICE. Mr. Pressly, tell me your thoughts about—I was 

struck by the fact that a homebuilder can get a citation 6 months 

after the fact and be gone. I mean, the home is built, the family 

is in the home, and they are getting a citation and then had to respond to 15 days. That seems fairly ridiculous to me. 

Mr. PRESSLY. It seems a bit disingenuous, but and the original 

statue there was a provision for a reasonable amount of time, 

which OSHA has interpreted to be 6 months. 

Mr. PRICE. What do you think it is? 

Mr. PRESSLY. To issue that citation? My thought is, I’m just an 

ordinary North Carolina boy and I don’t know a lot about a lot of 

things, but I want my people to be safe. It would be meaningful to 

me if that inspector on my job site would say David, here are 

these—here’s this frayed cord, here’s this scaffold, here is a ladder 

in a bad place, to tell me right then or write me up right then, because at that moment I’m going to take action to make sure that 

accident doesn’t occur. 

Mr. PRICE. At the time. At the time. 

Mr. PRESSLY. If it’s any time after that, particularly 6 months, 

everybody is gone and everybody’s forgotten about the situation. If 

indeed, I’m going to commit an infraction, I want to learn from that 

and I want to remedy it at that very moment. 

Mr. PRICE. Thank you. Mr. Morikawa, I wanted to follow up with 

you on, you made the comment that it’s important to remove the 

disincentives to safety on a voluntary basis for employers. Expand 

if you would please on those disincentives. You mentioned one of 

them. Are there others that we can address? 

Chairman NORWOOD. Make note that the yellow light is on, so 

be as brief as you can. 

35

Mr. MORIKAWA. I’ll try to make my comments brief to that, Mr. 

Price. 

Mr. PRICE. Thank you. 

Mr. MORIKAWA. I was focusing for the purpose of this paper on 

the issue of disincentives in the current policy that OSHA uses 

which encourages self-audits on one hand, and then uses the selfaudits and enforcement actions on the other. 

I was part of the advisory committee that was consulted by the 

administration at that time on the development of the policy. A 

number of us who represented management on that site were urging that there should be a threshold test for when OSHA could get 

those types of self-audits, such as when the employer itself put into 

issue the fact that they were self-auditing, they were trying to 

demonstrate that they were acting in good faith. If you put the 

audit into issue, then it should be produced in a litigation case. 

But what we objected to was the notion that a compliance officer 

in any case could just simply walk in and ask for the audit on the 

first day of an inspection—in some respects kind of short cut their 

way to finding violations. 

Employers obviously are not incented to create ways for which 

OSHA can cite them very easily. It makes common sense. So that 

is why we believe it is a disincentive to engage in this type of voluntary activity. 

I believe this self-auditing is an extremely valuable tool. Who 

knows better workplace conditions then the employer itself? They 

know. They know where they are. They know how to identify them. 

In my experience, employers that engage in self-auditing also engage in self-correction. It has been a very a successful venture 

when companies have done it. I think having disincentives like 

that, that is the ability to use these audits against them, and only 

in that very limited area, I think it is something that should be 

eliminated, and I think that this Subcommittee could help in a 

large measure, in helping employers to accomplish that goal. 

Mr. PRICE. Thank you. Thank you, Mr. Chairman. 

Chairman NORWOOD. Mr. Owens, your recognized for questions. 

Mr. OWENS. Thank you. I yield 2 minutes to my colleague, Ms. 

Woolsey. 

Ms. WOOLSEY. Thank you. I won’t take 2 minutes. Here is the 

fear, OK. We have all of a sudden less money for OSHA because, 

guess what, self-audits do the work of OSHA. Then there will be 

nobody to train, to help write the manuals, to help show small companies how to put together their safety programs and their safety 

committees. That’s my fear. 

The idea that you’re saying here, Mr. Morikawa, is ideal, and I 

hope that it will work. But I don’t think that we should let the 

company that self-audits and does not take care or have good faith 

steps of how they’re going to fix what they find wrong off the hook, 

because self-auditing is only stepped on. I am going to leave it at 

that, and yield back to Mr. Owens. 

Mr. OWENS. Yes, I would like to ask Mr. Migliaccio to look at the 

BP refinery situation in Texas City. 

I understand that they had—15 workers were killed in an explosion 2 months ago there. They had already been cited for safety 

lapses which had killed workers in the year 2003 and 2004. What 

36

effect would exempting employers who do self-audits from penalties 

for injuring or killing workers have in this kind of situation? 

Mr. MIGLIACCIO. By using that as an example, I would say nothing. 

Evidently they didn’t learn from their first two accidents, fatal 

accidents, and they are probably not going to learn from the third 

one. 

Here again, a person who wants to do something right is going 

to do it. People who choose not to do it, they’re not going to do it 

under any circumstances, no matter what the fine is, no matter 

what the penalty is. You’re going to have people like that, and they 

are the people you have to drive out. If it takes OSHA citations to 

drive them out through penalties, financial penalties, whatever it 

takes, that’s what you’re going to need. 

But evidently this company you’re speaking about hasn’t learned, 

and they are a large company which is surprising. Usually your petroleum industry is very well regulated, very well educated out 

there, they do have training. But sometimes they have a subcontractor that might be working for them that really doesn’t have it. 

So I don’t think that you’re going—it’s hard to reach a company 

that doesn’t want to do something voluntarily. That’s why the thing 

with the voluntary, you know making anything voluntarily, it is 

not going to happen. 

It’s like if the Federal Government asked me to pay my taxes voluntarily. Am I going to do it? I probably will. Would my brother, 

maybe not. 

I just look at things and you have to have some sort of organization, you have to have somebody overseeing, looking over your 

shoulder all the time. 

If you look at yourselves as the panel, your constituents back 

home look over your shoulder all the time. If you’re not doing your 

job, you’re looking for a job. It’s the same way in our business. If 

our companies, our union companies out there putting up steel 

erection, if the company is not making their money and they are 

not doing it right, they are out of business. The companies, the general companies, the owners, they don’t hire them. You’ve got to 

reach them. That’s it. 

Mr. OWENS. Mr. Turnipseed, you are a safety expert; what kind 

of qualifications would self-auditors have to have? For people who 

do self-audits would you want them to have some kind of licensing, 

some kind of provision for the person conducts self-audits, or the 

organization that pays somebody to conduct the self-audit, would 

there have to be some guidelines? 

Mr. TURNIPSEED. Yes, there are several guidelines. As I said in 

my opening comments, there are independent accrediting associations that go through and validate that. Such organizations as the 

Board of Certified Safety Professionals, there’s an Industrial Hygiene certification. These are all independently audited. 

People have to have experience, they have to have testing. Myself, as a certified safety professional, I have a stamp very similar 

to professional engineer. The CSP is in fact equivalent to the engineer in training, the first step in becoming a professional engineer. 

37

So in the safety and health area there are several areas where 

you can actually get people officially trained, certified by an independent agency that they are in fact experts. 

Mr. OWENS. So self-auditing then, and employment of experts 

would be feasible only for very large companies that can afford it, 

right? 

Mr. TURNIPSEED. To a certain extent, but if we go with this program were talking about Senator Enzi’s SAFE Act, where you’re 

going to have some of these voluntary audits, you should be able 

to go to an individual who is certified by the Department of Labor 

as an expert in whatever industry or profession, bring that individual in, you know, at the cost of the employer obviously, to do 

that audit. 

I think some of the smaller companies could afford some of these 

things. It’s not going to be cost prohibitive. 

Mr. OWENS. Mr. Morikawa, why should OSHA pay for these 

third-party safety auditors, when OSHA already spends over 10 

percent of its entire budget on the free and confidential state consultation programs in all 50 states? Do you think that program is 

working? 

Mr. MORIKAWA. Mr. Owens, I think the state consultation programs are an excellent idea. I think they’re necessary. I think that 

the consultation programs provide a valuable service to small employers, because they provide a means or expertise to be able to 

identify safety and health hazards. 

The problem, as I see it, is that auditing, which is I think a very 

important component of any safety and health program, is something that can provide tremendous leverage in reaching compliance 

across broad spectrums. I think the whole idea of third party auditing is a good one, for this reason. 

No. 1, it will encourage employers to use that service. It accomplishes OSHA’s mission, and OSHA’s mission isn’t just punishing 

employers that violate OSHA standards. OSHA’s mission also 

should be prevention of accidents, prevention of illnesses. If they 

need to do that through these types of programs involving thirdparty auditors, that is a worthy funding source. I think that is 

money well spent. I would support money to be channeled in that 

direction to support that activity, because I think you really will 

bring about this entire evolution of compliance on a voluntary basis 

across——

Mr. OWENS. Instead of the state consultation program you take 

some of that money and use of the self-audits, is that what you’re 

saying? 

Mr. MORIKAWA. Well, I can ask the question about how money 

should be allocated. That’s for this Congress to decide. I can only 

say that there very many valuable functions that are performed by 

state consultation and Federal OSHA, a lot of different agencies 

trying to address the same issue. 

I believe that we ought to try to reduce and eliminate 

redundancies were you have both State and Federal doing the 

same thing. But I certainly think that there ought to be collaborative efforts designed to use those funds in a way to accomplish 

maximum impact, bang for the buck, if you will. 

Mr. OWENS. My time is up. 

38

Chairman NORWOOD. Thank you, Mr. Owens. Well first, let me 

just make a comment. OSHA doesn’t have anything. The American 

taxpayers pay for that. It may be something—including you gentlemen that are out there working every day. So it is sort of you are 

paying your way if we get third-party auditors. OSHA just doesn’t 

have the right to pay anything. 

Mrs. Drake, you’re now recognized for 5 minutes. 

Mrs. DRAKE. Thank you, Mr. Chairman. The first question that 

I have that hit my mind immediately as you all began to speak, 

is do you think, all of you, if you would each answer, that the 

American worker is safer because we have this audit, or do you 

think they are more in harm’s way because of having this type of 

voluntary program? 

Mr. TURNIPSEED. From my experience, I believe that the workers 

are very safe. I see this as another resource, another arrow in the 

quiver, that we can add to improving that. I’ve done some independent work as a consultant, and even in places around the world, 

and I can testify with all honesty that we do a very good program 

here. We can do better, though. 

Mrs. DRAKE. Mr. Pressly. 

Mr. PRESSLY. Mrs. Drake, we as a trade association have sought 

out opportunities not only to represent our members, but simply to 

do the right thing. We have coalesced with the Environmental Protection Agency, with Fish and Wildlife and with Endangered Species, and certainly with OSHA. 

This is just one example of what I have given you of the alliance 

that we have had in the collaboration that we’ve had with this 

agency, this Federal Government agency, because they care about 

the safety of our—in this situation, care about the safety of our 

workers in this. 

So I recognize in my life that I’m not going to achieve perfection 

this side of the Jordan, but I’m going to do everything I can in this 

context to have a personal worksite that these men and women 

who work for me, simply because I care about them. Thank you for 

that. 

Mrs. DRAKE. Frank. 

Mr. MIGLIACCIO. I would say yes, we are probably safer now, 

today, than we were 50 years ago. I wouldn’t necessarily say it is 

because of the audit. 

Here again, I feel as though it is somebody looking over 

everybody’s shoulder. I think the training is a lot better out there 

now. 

Mrs. DRAKE. But then, don’t you think if there were a company 

that had violations and you knew they were a problem that possibly they could be done by OSHA, and we could be using the audits on other companies that don’t have serious violations, and then 

use OSHA resources for companies like you described a little while 

ago? 

Mr. MIGLIACCIO. I don’t think, I mean, OSHA resources are already probably at their max right now. If I understand everything 

that has been said today, the audits supposedly—and the audit 

should be kept confidential and not be put out there. So if OSHA 

was to use them, then it is going against what has been said today. 

39

Mrs. DRAKE. But OSHA would know if there were a fatality on 

a site. 

Mr. MIGLIACCIO. That’s correct, but they wouldn’t know about 

the injuries sometimes. A lot of times injuries aren’t reported. 

Sometimes they’re not reported because the person that’s working 

on the job, for fear of losing their job, wouldn’t report an injury. 

Mrs. DRAKE. Mr. Chairman, I just wanted to make the comment 

that I visited—I visit businesses in my district. I’ll have a new 

question to ask them about whether they are doing any of these 

voluntary and audits or anything. 

But a business recently told me that they had $1 million worth 

of costs last year in injuries. They did something on their own, 

whether it was one of these voluntary, or they just did it within 

their own business. So far this year—I mean they went in and 

looked at what they were doing, they found right away that what 

they thought their workers knew and what their workers knew 

were two different things. They began really focusing on safety. 

They have had not one injury so far this year. 

So I don’t think there’s any businessman out there ever that 

would want this kind of expense on their bottom line, when they 

could be doing things voluntarily to find, and I think you would 

agree with me, Dennis? 

Mr. MORIKAWA. I do totally agree with you. In fact, I think an 

important point that needs to be made with respect to the concept 

of employer self-auditing is that this costs nothing for OSHA. 

These are employers who are volunteering to do this on their own, 

they are not asking for funding from OSHA. The Transmission and 

Distribution Electrical Construction Contractors Partnerships is a 

perfect example of that. 

This is a case where the five leading companies in the industry 

get together. They’re both union and nonunion. They partnered together with the Edison Electrical Institute, which is the large trade 

association. The National——

Mrs. DRAKE. Does that employer pay for that or does OSHA provide that? I’ve heard both things. I’ve heard the employer pays and 

I have heard that we’re using all of this OSHA money. 

Mr. MORIKAWA. Let me explain that. In this particular instance, 

this is funded by the partnership itself, by the members of the 

partnership. 

Mrs. DRAKE. OK. 

Mr. MORIKAWA. Not by OSHA. OSHA has basically agreed to 

provide some resources to the partnership to study the causes of 

injuries and to help devise best practices. But the bulk of the costs 

has been borne by the members equally. That is not just the companies and also the union, and this has worked very effectively. 

We have found that this type of self-help, financed largely by the 

sector itself, not by the government is the way that we have been 

able to accomplish great, great strides in safety. 

Mrs. DRAKE. Thank you for answering that. Mr. Chairman, I just 

want to comment. I am not sure that a lot of these businesses 

know about OSHA rules. I bought a business license for my real 

estate business to move to another site from my broker. I never got 

anything from OSHA about my employees. I got a bill for my treasVerDate 0ct 09 2002 13:26 Nov 16, 2005 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 H:\DOCS\21138 NNIXON
40

urer saying that I had to pay business personal property tax, but 

nothing from OSHA. 

So I don’t know how that word gets out there, or especially because we’re talking about small businesses being much more of a 

problem, than a large business that would have attorneys that 

know all of this. Thank you, Mr. Chairman. 

Chairman NORWOOD. Thank you, Mrs. Drake. Now I’ll recognize 

myself to ask a couple of questions. 

Mr. Pressly, your particular statement interests me. Why do you 

suppose, or do you have any reason to know why all should take 

so long, you stated something like almost 6 months, to issue a citation. Why would they do that? 

Mr. PRESSLY. Sir, I don’t know and I’m certainly will characterize 

that mind-set. It’s human nature. If we have to operate between 

these margins and we begin at this point and complete at this 

time, there is a tendency to complete the job here, if I could be 

done at this time. That’s my only guess. 

But, being a very pragmatic person, I want to know if my job site 

or my workplace is unsafe. And I want to know there, at that time 

so I can remedy that problem at that very moment, and not wait 

until after the fact and have a chance on another injury if. So I 

don’t have the precise answer, but I can tell you that it certainly 

doesn’t make sense to me. 

Chairman NORWOOD. Well, it doesn’t do me either. I will try to 

find out a little more detail about that as to why it should take so 

long. I mean, I know that there is no doubt they are undermanned, 

there’s no question about that. But we need to know why there it 

consistently takes 5-months and 25 days to have those citations 

out. I think it would help you to know immediately too. 

In reading your testimony I noticed that the Homebuilders were 

concerned that some of the small associations and builders will no 

longer be able to participate in OSHA’s partnership program. I 

would like for you to explain that to me just a little bit. 

Mr. PRESSLY. A little bit about the partnership program. Again, 

it is a theme and purpose to have a safe workplace. We have had 

a series of exceptionally favorable relationships with OSHA and the 

folks at OSHA. I have given you a couple of examples. 

One of those aspects relate to inspections at these job sites by 

peers, who may see something that I wouldn’t see on my site and 

help make my site safe. The proposed change as I understand it, 

is to have a compliance inspection by OSHA, which says—which we 

are going now from a voluntary situation. If that OSHA inspector 

comes to my job site, in terms of this proposed directive, and finds 

me a violation of some aspect, that’s a fine for me right there. 

When in turn, if previously I could have—it could have been a voluntary thing and I could have remedied that immediately. So I 

think there will be many small business people will not participate 

in that program for that very reason. 

Chairman NORWOOD. You implied or said to me in your statement or in your testimony that most homebuilders build 10 homes 

or less a year? 

Mr. PRESSLY. Yes, sir. 

Chairman NORWOOD. In that category of homebuilders, what 

number of employees might they have? 

41

Mr. PRESSLY. Ten is the number we use. In my family, in my 

company, mine is a small family company, in fact, in my company 

my wife is a licensed contractor. We all were multiple hats and my 

small company. I showed you my plan and my concern. 

But I will tell you that they are so many things in a small company that we all have responsibilities for and safety is certainly 

one of the most important ones we have. But our minds are limited, our focus is limited and for various reasons that we may not 

be applying ourselves where we may need to be applying ourselves 

at various times. 

Chairman NORWOOD. Well, my interest in all of this is for the 

small businessman and woman. You know, the large companies can 

well afford to hire somebody or two somebodies to be on their staff. 

Mr. PRESSLY. Mm-hmm. 

Chairman NORWOOD. But I knew I could never hire anybody to 

be in my office to be an OSHA adviser for health and safety. I 

thought I was pretty good about advising about health myself, but 

you know, you just can’t afford that. Someone mentioned earlier 

about regulations. I think there are about 18, about that thick, the 

number of regulations plus all the other stuff. 

I mean, it’s pretty hard to anticipate that all of these small businesses can know everything that these folks up here, sitting in 

their ivory tower, are ordering to be done plus what is happening 

in your state. 

The alliance program, we have heard a lot of praise about the 

program and a lot of criticism. How is your alliance with OSHA 

working for your industry. Perhaps you could give some examples 

of how it may have helped improve safety for your employees? 

Mr. PRESSLY. Yes. We’ve had—as I have testified, we have had 

a series of exceptionally favorable relationships with your OSHA 

team, and we’re grateful for that. As I showed you, one of the 

issues that is important to us as homebuilders again is the safety 

of these scaffolds. 

We as the National Association of Home Builders wrote this book 

in both English and Spanish, and asked the OSHA staff to simply 

review it, to make sure that we were consistent their expectations. 

They were and we published it and printed it and distribute it to 

our members. 

OSHA now has a web site on light residential construction. It is 

in both English and Spanish. So any one of our employees—not 

only can an employer go to that, but any employee who has online 

access can go to that web site now to see exactly what those requirements are. 

So our alliance has benefited us as homebuilders and light construction folks in a number of ways, and we hope that we can sustain that dialog and that relationship at our expense and in our 

time with your OSHA’s staff. 

Chairman NORWOOD. My time is up and I am going to conclude 

this hearing with a few comments just for the record to make sure 

that it is straight as it can be. 

My friend and colleague earlier stated that an employee is killed 

every 96 minutes because of ‘‘corporate homicide,’’ I quote, or an 

employer’s willful behavior. Now that’s just not right in the record 

shouldn’t reflect that. We all agree that even one preventable death 

42

in the workplace is one too many. That said, I think it is important 

that we get this record to reflect the correct data. 

For the latest year for which we have information, there were 

5,559 deaths in the workplace due to occupational injury that were 

reported. But what we failed to point out is that the 5,559 number 

includes every occupational injury death in the workplace for whatever the cause. That includes homicide, that includes suicide, that 

includes auto accidents, and other instances which falls nowhere 

inside the OSHA jurisdiction. In fact, of the 5,559 deaths in the 

workplace, almost 60 percent, 3,258 were traffic or highway incidents, or suicides, or homicides or assaults, but nothing related to 

corporate homicide. 

In short, if you want to say that on average throughout the work 

force of the entire United States of America, one employee dies 

every 96 minutes, that may be correct. But you shouldn’t claim 

that that is caused by corporate homicide or employer wrongdoing 

causing these deaths. 

Another interesting thing, what we are really after here is to 

point out that we’re not going to make it a healthier or safer workplace by hiring more inspectors. 

Based on the current numbers that we have, and this is an estimate and it is rough, and we will get it tightened up but it is basically about right, we would have to have 108,000 new OSHA inspectors to inspect every workplace every 2 years. Now if you could 

do that, if you could inspect every workplace every 2 years, I bet 

you would make some improvements. But that’s not going to happen. Let’s try to be realistic about that. 

We currently have 1200. Adding a thousand isn’t going to help 

much. We’ve got to think outside the box here and find another 

way to make this a safe and healthy workplace other than saying, 

oh gosh, we’ve got to have more inspectors. If anybody has got a 

clue to how to hire 50,000 more, I would like to hear from them. 

This would cause us to increase the number of inspectors by a 

hundredfold. Now everybody knows that is not going to happen in 

this town. So let’s find another way to get this job done. 

I want to thank the American Industrial Hygiene Association 

and recognize that they have submitted testimony for the record 

that is very important and recommend that all of our colleagues 

read that. 

[The material to be provided follows:]

Statement of the American Industrial Hygiene Association, Fairfax, VA, 

Submitted for the Record 

Chairman Norwood and Members of the Committee: 

The American Industrial Hygiene Association (AIHA) is pleased to submit the following comments to the House Education and the Workforce Committee—Subcommittee on Workforce Protections on today’s hearing titled ‘‘Examining Voluntary 

Employer Compliance Programs that Improve Occupational Safety and Health’’. 

Founded in 1939, AIHA is the premier association of occupational and environmental health and safety professionals. AIHA’s 12,000 members play a crucial role 

on the front line of worker health and safety every day. AIHA is the most diverse 

professional association dedicated solely to the prevention of workplace fatalities, injuries, and illnesses with members representing a cross-section of industry, private 

business, labor, academia, and government. One of AIHA’s goals is to bring ‘‘good 

science’’ and the benefits of our workplace experience to the public policy process 

directed at worker health and safety. 

43

As the professionals entrusted to assist employees and employers in making the 

workplace healthier and safer, AIHA is particularly pleased to submit comments on 

the issue of looking at voluntary programs that would improve occupational health 

and safety. 

AIHA would also like to thank the Chairman and members of the Subcommittee 

on behalf of the millions of Americans, both employees and employers who desire 

a healthy and safe workplace, for your involvement in addressing this issue. Your 

leadership is critical to improving this country’s record of workplace-related injury 

and illness impacting workers, their families, and our communities. 

Over the course of the last several years, there have been numerous legislative 

proposals to amend the Occupational Safety and Health Act and/or take a closer 

look at the way the Occupational Safety and Health Administration (OSHA) has addressed the issue of enforcement and compliance assistance to employers. While few 

of these proposals have made their way into law, it goes without saying that the 

sponsors of these measures all had the same goal—to assure the health and safety 

of every worker. AIHA shares this goal. 

Prior to offering our comments on some of the approaches that may be put in 

place to assist employers, AIHA believes it is important for you to understand 

AIHA’s view of OSHA. We have reviewed our position statement on ‘‘AIHA’s Global 

View of OSHA’’ and find that while not all of this position statement addresses the 

issue of ‘‘voluntary programs’’, we feel it is important for the subcommittee to be 

aware of what we feel is necessary for OSHA to be an effective agency for worker 

health and safety. 

AIHA believes that: 

• There must be a strong and well-funded OSHA. Continuing federal oversight is 

necessary to achieve ‘‘safe and healthful’’ workplaces. 

• OSHA should have primary authority for health and safety in the workplace. 

Overlap and duplication among different government agencies makes compliance difficult, creating confusion and increased cost for employers. 

• OSHA should receive adequate resources to provide coverage and enforcement. 

OSHA resources should be increased and coverage extended to the millions of 

public employees not currently covered by the OSH Act. OSHA penalties, including criminal penalties, should be at least as stringent as penalties for environmental laws. 

• OSHA should set and enforce a set of generic performance standards. Addressing every hazard with a highly specific standard is an impossible task. A small 

number of generic performance regulations are needed. Generic standards 

should not replace, but complement, existing standards. 

• OSHA should promote occupational health and safety programs for employers. 

We encourage the use of innovative incentives, particularly for small businesses. 

• OSHA should have a mechanism to encourage employers to obtain third party 

assistance. Collaborate with employees and labor. Assistance should be provided 

by a competent Health and Safety professional having credentials recognized by 

national accrediting bodies (e.g., a CIH, CSP, ROH, or equivalent). 

• There must be a mechanism for employee complaints. 

• OSHA should collect and disseminate health and safety data. 

• OSHA should provide education, training and guidance to employers and employee groups. 

• OSHA should enhance technical support and research. 

• There should be a general duty clause. 

• OSHA should increase incentives for employers and labor to voluntarily achieve 

excellence in occupational health and safety. 

• OSHA should enhance opportunities for employee participation. Facilitate 

‘‘partnering’’ among all workplace stakeholders. 

As to some specific programs that might be implemented to improve occupational 

health and safety, AIHA suggests: 

THIRD PARTY CONSULTATION SERVICES PROGRAM 

In a report published in March 2004, the General Accounting Office (GAO) cited 

the use of third party consultants among a list of recommendations by researchers, 

safety and health practitioners, and specialists, to achieve voluntary OSHA compliance. According to the GAO report: ‘‘Using consultants could leverage existing 

OSHA resources by helping workplaces that might never otherwise see an OSHA 

inspector, especially small employers, and possibly also by enabling employers to address additional safety and health issues that might not be covered under an OSHA 

inspection for compliance standards’’. 

44

AIHA agrees and strongly supports creation of a voluntary third party consultation services program. 

To assist in creation of such a program, AIHA has worked with several others to 

draft a stand-alone legislative measure that would introduce a pilot program to put 

a limited third party program in place. We are hopeful this measure will be introduced in this session of Congress. 

This legislative measure incorporates the best of the legislative language that was 

previously introduced regarding this program, yet addresses many of the concerns 

that were raised during hearings on the proposal. 

The draft bill would encourage small employers to conduct voluntary safety and 

health audits using the expertise of qualified safety and health consultants. A pilot 

program would be established in 3 States and would be limited to assisting small 

businesses as defined in the proposal. Consultants would be required to meet specific educational and experience qualifications in order to be certified to assist small 

business with the consultation. A special advisory committee would be established 

to carry out the duties of the program, with employers, employees and safety and 

health professionals serving as members of the advisory committee. Once a consultation has been completed and all health and safety questions resolved, the employer would be exempt from the assessment of any civil penalty from OSHA for 

a period of 1 year. It should also be noted that AIHA’s support of a voluntary third 

party consultation services program in no way diminishes the need for companies 

to have internal audit programs. 

AIHA is convinced that of all the voluntary programs being discussed to assist 

small business, this third party consultation program offers the most assistance 

with the least cost. 

CONTINUING EDUCATION AND PROFESSIONAL CERTIFICATION FOR CERTAIN OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION PERSONNEL 

AIHA supports efforts to assure employees and employers that OSHA personnel 

are qualified to provide expert advice and assistance. In the past four years, AIHA 

is aware of the substantial increase in the number of OSHA personnel attaining nationally recognized health and safety certifications, such as the certified industrial 

hygienist and the certified safety professional designations. Continuation of this program should continue. AIHA has heard from many individuals that such certification indeed lends additional credibility to OSHA personnel. 

VOLUNTARY PROTECTION PROGRAMS 

AIHA supports codification of the Voluntary Protection Program. The number of 

participants in this program continues to grow and all parties can be proud of the 

results of the program. Additional efforts need to be made to increase the number 

of participants, to include developing and implementing efforts that encourage participation of more small employers interested in the program. OSHA has made great 

strides in the past four years to create new programs for small employers to enter 

the program. Legislative confirmation of these efforts should be a priority. 

TECHNICAL ASSISTANCE FOR SMALL BUSINESS 

AIHA strongly supports an increase in assistance to small business through increased funding for consultation programs. In addition to increased compliance assistance through OSHA, AIHA is also supportive of legislative efforts to assist small 

business through other compliance initiatives. Most notable among these is House 

Bill 230, the National Small Business Regulatory Assistance Act of 2005, introduced 

by Rep. John Sweeney of New York. This bill would provide an avenue for small 

business to attend compliance assistance seminars where they could be provided 

help in complying with federal regulations. Qualified third parties with expertise in 

the related areas would conduct the seminars. 

CONCLUSION 

AIHA is aware that there may be many additional voluntary compliance programs 

that have been, or will be, discussed when addressing the issue of employer programs that improve occupational health and safety. Our thoughts on the proposals 

within these comments should not mean that we may not be supportive of others. 

AIHA is supportive of any and all programs that positively address occupational 

health and safety in the workplace. 

AIHA believes that the view of OSHA over the last several years is one that does 

not necessarily focus on enforcement/compliance, but an OSHA that attempts to 

build a partnership with business. AIHA is pleased to be one of over 300 organizations with an Alliance/Partnership with OSHA that strives to bring forth the best 

45

solutions to workplace health and safety problems and share them with others. This 

is the type of cooperation that should continue. 

AIHA applauds your efforts and sincerely hopes you will be successful in your endeavor to advance the cause of worker health and safety. AIHA stands ready to assist you and Congress in every possible way in developing solutions that will best 

protect workers. 

Thank you. 

Mr. OWENS. Excuse me. May I have one closing comment? 

Chairman NORWOOD. Yes, you may. Certainly. Mr. Owens, you’re 

recognized. 

Mr. OWENS. Yes, just to clarify one point that you’re making. We 

have not used the word ‘‘homicide.’’ You chose to use that word. We 

would like to have the record kept open for us to submit an explanation as to exactly how we arrived at the figure of 96 deaths. 

We would also like to note the fact that no one is proposing that 

we hire enough inspectors to inspect every business, every year, or 

every 2 years. We’re just proposing that we maintain a level of accountability through enough inspectors to make people take the 

law seriously. 

No one has ever proposed that every taxpayer have his income 

tax audited, but it would be ridiculous to propose that we eliminate 

all auditing of income taxes as a remedy to the situation. We are 

talking about a situation where there is a small percentage of corruption or failure to comply and that can be deadly. The percentage 

is too great and the amount of suffering that accumulates as a result of that is too great. Thank you. 

Chairman NORWOOD. I think the Ranking Member, and I wish 

to thank our witnesses for your valuable time, and I know it is, and 

your testimony. 

I thank all of our Members today that were here participating in 

this. If there is no further business, the Subcommittee stands adjourned. 

[Whereupon at 11:56 a.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows:]

Response of David Pressly, Incoming President, National Association of 

Homebuilders, Washington, DC, to Questions Submitted for the Record 

The Honorable Charlie Norwood (R–GA) 

Chairman, Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

2181 Rayburn House Office Building 

Washington, DC 20515

Dear Chairman Norwood: 

On behalf of the 220,000 members of the National Association of Home Builders 

(NAHB), I would like to express my thanks for the opportunity to testify before your 

subcommittee on May 12. NAHB’s members are deeply concerned with the continued safety and well-being of their employees, and appreciate the opportunity to 

share their concerns about the Occupational Safety and Health Administration’s 

(OSHA) enforcement and citation practices and policies with Congress. I also appreciate the written questions you forwarded to my attention following the hearing. I 

have included my response to your questions below:

1. Can we build into any recommendations that a written list be given at inspection with the understanding that a written report will follow? 

One of the recurring problems in the home building industry is the lack of information provided to employers at the conclusion of the inspection. While we understand that OSHA needs time to formulate and issue citations following an inspection, we believe that OSHA should be required to notify employers at the conclusion 

of the inspection about the possible violations noticed during the inspection. Since 

46

it takes approximately 3 months to build an average sized home, and OSHA has 

up to 6 months to issue citations, it does no good to alert an employer to jobsite 

hazards on a jobsite that no longer exists. In order to be able to correct hazards 

in a timely manner and re-train employees who may be involved in a violation, an 

employer must have prompt notification of potential problems. 

Additionally, OSHA needs to take time at the end of inspections to explain in 

plain English how employers can contest citations, and provide a list of who at the 

local or regional OSHA office an employer can call with questions about their inspection or citations. These reforms, though small, can go a long way towards helping employers in the building industry mitigate and respond to jobsite hazards, and 

provide for enhanced protection for workers.

2. Don’t you think 15 days is too short? Maybe 15 with an extension of 15 upon 

request? 

Many NAHB members have been concerned for some time about the amount of 

time given to businesses to contest citations. The majority of NAHB members are 

classified as ‘‘small businesses,’’ many with 10 or fewer employees. Most business 

owners wear many hats, managing day to day operations, handling safety concerns, 

and swinging a hammer next to their employees on the jobsite. When a small company receives an OSHA citation, it often can go overlooked for several days while 

an employer is occupied with another aspect of the company, and by the time they 

have reviewed it, and talked to the employees involved in the citation, it is too late 

to contest the citation. 

NAHB believes that, especially given OSHA’s ability to issue citations up to 6 

months following an inspection, it is unfair to only allow businesses 15 days to respond to a citation. We have strongly supported Chairman Norwood’s legislation, 

H.R. 739, and any legislation that would provide flexibility on the 15-day contest 

period if the missed deadline was the result of a mistake, inadvertence, surprise, 

or excusable neglect. We would support any opportunity to give businesses the flexibility to request an extension of the 15 day deadline. 

I hope these answers provide the subcommittee with further clarification of 

NAHB’s positions on OSHA policies and practices. If I can be of any further assistance, or provide any additional information, please do not hesitate to contact me.

Sincerely,

David L. Pressly, Jr. 

NAHB First Vice President

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